COFFIN, Chief Judge.
On December 31, 1972 Roberto Clemente, two other passengers and two crewmen were killed in the crash of a private plane off the coast of Puerto Rico. Clemente, an
A prerequisite for recovery under the Federal Tort Claims Act is that there be a "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." 28 U.S.C. § 1346(b) [emphasis added]. Here the law of Puerto Rico is controlling.
In denying the government's motion for reconsideration of the court's original opinion and order, the district court pointed out, 426 F.Supp. 1 (D.P.R.1977), that Article 1802 of the Puerto Rico Civil Code (31 LPRA 5141)
The critical question then is whether the FAA staff in Puerto Rico was under a duty to inspect the aircraft and to warn plaintiffs' decedents of any irregularities. The district court found that such a duty was created "in a general manner" when Congress passed the Federal Aviation Act and "in a more precise fashion" through the issuance of Order SO 8430.20C
Given this general scope of statutory authority and the lack of any specific legislative mandate concerning the measures allegedly required by the Southern Region's order, the issue is whether the promulgation of that order created a duty of care on the part of the government to plaintiffs' decedents in light of the Federal Tort Claims Act's requirement that the United States be held liable only if private parties would be liable for comparable conduct. We sympathize with the district court's struggles in attempting to apply the Tort Claims Act's conceptually difficult provision. Because the powers of the United States are so vast and because the government necessarily includes a wide variety of institutional forms and legal relationships, the United States cannot easily be envisioned as a single entity in the "man in the street" world of common law torts.
Much of the problem results from the fact that the government frequently acts in a sovereign capacity. In one sense whatever the government says is law. However, for the purposes of the Federal Tort Claims Act the sovereignty of the government must, in many cases, be ignored. Clearly "no private individual has power to assume the prerogatives of sovereignty", Union Trust Co. of District of Columbia v. United States, 113 F.Supp. 80, 82 (D.D.C.1953). It was therefore perhaps understandable that the government would argue that when it acted in its sovereign capacity it was excluded from liability under the Act since there could be no comparable private conduct. The courts, recognizing that such a doctrine would unduly restrict the scope of the Act beyond the intent of Congress, have consistently rejected this "sovereignty" defense at all judicial levels. See, e. g., Union Trust Co., supra; Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). But this decision to ignore the government's sovereignty operates in the reverse direction as well. Just as the government cannot invoke sovereignty as a defense to distinguish its conduct from that of private persons, plaintiffs cannot use the implicit sovereignty of the government to argue that all its internal communications establish standards of care similar to those created by duly promulgated laws of general application. Not all acts and orders of the United States government are so sovereign that they must be treated as commands which create legal duties or standards, the violation of which involves breaking the law. A considerable part of the government's conduct is in the context of an employer-employee relationship, a relationship which includes reciprocal duties between the government and its staff, but not necessarily a legal duty to the citizenry.
In the present case a member of the FAA staff, in an attempt to implement agency policy, ordered the Flight Standards District Office to take certain steps regarding the surveillance of large turbined powered aircraft. Even assuming, as plaintiffs contend, that this order was mandatory, the duty it creates is that of the District Office employees to perform their jobs in a certain way as directed by their superiors. This
The appropriate analogy to private life seems to be that of a corporate employer who has hired a safety director to insure that the firm's business environment is free from accidents and health hazards. Acting entirely within his authority the safety director orders his staff to check that other firms in the vicinity are meeting fire regulation standards. If one such employee fails to inspect a nearby firm's building and if it burns to the ground thereafter because of unsafe conditions which would have been rectified had the employee carried out his assigned task, is either the employee or the employer liable for this failing? We think not. No Puerto Rico case alleging a remotely similar basis for liability has been brought to our attention.
To hold otherwise would be to interpret every command made as an exercise
Under such examination we do not find the district court's authorities to be persuasive. Four of the cases cited do not involve tort liability of any kind. Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 1202, 86 L.Ed. 1563 (1942), held that regulations characterized by an agency as announcements of policy "must be taken by those entitled to rely upon them as what they purport to be— an exercise of the delegated legislative power . . .", and as such are reviewable by the Court. This is inapposite to the facts of the present case; there is no claim that any of plaintiffs' decedents relied on the Southern Region's order in any way or even knew of its existence for that matter, and the relevant issue here is liability, not reviewability.
The other three non-tort cases relate to due process standards which require agencies to abide by their own regulations or directives. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) involves the rights of a federal employee to have the government abide by its own procedural rules in imposing sanctions on him. Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) is similar except that it deals with the rights of an army reservist against the military as opposed to the rights of an employee. United States v. Heffner, 420 F.2d 809 (4th Cir. 1970) concerns the rights of a taxpayer to have IRS agents obey their own orders and instructions while interrogating him in connection with a tax fraud investigation.
The remaining cases cited by the district court all involve accidents resulting from the negligence of air traffic controllers. Appellees point out several additional cases in which liability was upheld in similar circumstances. There can be no doubt that federal air traffic controllers are held to a wide range of duties to the air travelling public, and that the Air Traffic Control Procedures Manual of the FAA is used by courts to determine at least part of the scope of those duties. See, e. g., Dickens v. United States, 545 F.2d 886 (5th Cir. 1977); Hartz v. United States, 387 F.2d 870 (5th Cir. 1968); Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir. 1967).
Thus the duties of air tower controllers have three unique characteristics totally distinguishable from the FAA inspectors before us. First, they operate under federal rules which were clearly designed to establish standards of care for a particular role, regardless of the status of the employee (private, public, municipal or federal) fulfilling it. A federal employee is subject to whatever duty is imposed by these regulations in the same manner in which any citizen would be. The inspectors at San Juan, on the contrary, were given orders as federal employees to perform certain tasks and were bound to obey them only as employees. As such they owed a duty to those who would receive the benefit of their performance only to the extent that their superiors owed such a duty. As has been noted, the issuance of SO 8430.20C was not required by law or legal duty, it was a discretionary policy decision.
Second, the nature of the role of air tower operators involves various duties to air traffic regardless of the procedures promulgated in the manual. This is confirmed by the decisions which have found the duties of air tower controllers to extend beyond that required by the FAA manual, see American Airlines, Inc. v. United States, 418 F.2d 180, 193 (5th Cir. 1969); United States v. Furumizo, 381 F.2d 965, 968 (9th Cir. 1967); Hartz v. United States, 387 F.2d 870 (5th Cir. 1968); Stork v. United States, 430 F.2d 1104 (9th Cir. 1970); Spaulding v. United States, 455 F.2d 222, 226 n. 8 (9th Cir. 1975). Tort liability is intrinsic in the function; once the government took control of the air towers it became subject to the duties that would devolve on any entity that took on such responsibility. There is no comparable duty
The third characteristic is a corollary of the second. The relationship between pilots and passengers and air controllers is imbued with reliance, a foundation stone of tort liability. One can no more imagine an air traffic controller being free from the weight of reliance interests than one can a traffic policeman at a busy intersection. Traffic safety is dependent on every action and inaction. This has been recognized directly, see Yates v. United States, 497 F.2d 878, 883-884 (10th Cir. 1974); Gill v. United States, 429 F.2d 1072 (5th Cir. 1970); Ingham v. Eastern Airlines, Inc., 373 F.2d 227, 236 (2d Cir. 1967); Allen v. United States, 370 F.Supp. 992, 999 (E.D.Miss.1973). It is also apparent from the number of air controller liability cases citing the "Good Samaritan" doctrine beginning with Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), which held that when the government gratuitously undertakes to perform a service upon which members of the public justifiably rely, it will be held to an appropriate standard of care in carrying the service out. See Spaulding v. United States, 455 F.2d 222, 226 n. 9 (9th Cir. 1975); Yates v. United States, 497 F.2d 878, 884 (10th Cir. 1974); Gill v. United States, 429 F.2d 1072, 1074 (5th Cir. 1970); Dickens v. United States, 378 F.Supp. 845 (S.D.Tex.1974); Allen v. United States, 370 F.Supp. 992, 999 (E.D.Miss.1973).
There is no indication in the present case that plaintiffs' decedents or anyone else for that matter have ever relied on the FAA to inspect a charter aircraft before they embark on a private flight. We doubt that the Supreme Court in Indian Towing would have found liability if the government's negligence simply amounted to failing to construct a lighthouse as ordered by a Coast Guard official when the seafaring public was unaware that such an order had been given, and the lighthouse was never operational.
Although there are few cases that discuss the creation of a duty directly outside of the air controller context, we believe a related line of cases is relevant. On several occasions an employee of an independent contractor working on a government project has been injured or killed in an accident and suit is brought against the United States under the Federal Tort Claims Act. An early case to discuss this issue was Kirk v. United States, 270 F.2d 110 (9th Cir. 1959). In Kirk plaintiff's decedent was killed while working on a dam project on United States property; the project required implementing plans developed by the U.S. Army Corps of Engineers. Decedent's employer, an independent construction company, was under contract with the United States government. One of the provisions of the contract required the construction company to comply with the safety standards of the Corps of Engineers' "Safety Requirements" manual, and permitted the government to halt work on the project for any lack of prompt compliance. Several other safety manuals and army regulations calling for mandatory and continuous safety programs on construction projects were introduced into evidence. Government inspectors were regularly on the site. Yet the court did not find the government to be liable because the statute under which the construction was undertaken did not "establish a duty of care on behalf of the United States toward employees of an independent contractor" nor did it
The general holding of Kirk that employees of independent contractors cannot recover from the government under the Federal Tort Claims Act on the basis of contractual obligations requiring various safety measures and the presence of government safety inspectors in the area, has been affirmed on numerous occasions. See Fisher v. United States, 441 F.2d 1288 (3d Cir. 1971); Market Insurance Co. v. United States, 415 F.2d 459 (5th Cir. 1969); Lipka v. United States, 369 F.2d 288 (2d Cir. 1966); United States v. Page, 350 F.2d 28 (10th Cir. 1965); Blaber v. United States, 332 F.2d 629 (2d Cir. 1964); McGarry v. United States, 370 F.Supp. 525 (D.Nev.1973), rev'd on other grounds, 549 F.2d 587 (9th Cir. 1976). We recognize that a significant reason for the failure to find liability in these cases, and one which at first glance distinguishes them from the current case, is the belief that the primary responsibility for the safety of a contractor's employees rests with the contractor himself, not the federal government. However, federal regulations similarly make clear that "The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight." 14 CFR 91.29(b). See also 14 CFR 91.163.
The cases we have just considered turned on the lack of direct statutory authority for the existence of a federal duty of care to a particular class of individuals. It should be noted that even where specific behavior of federal employees is required by federal statute, liability to the beneficiaries of that statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable private liability. Thus in Davis v. United States, 395 F.Supp. 793 (D.Neb.1975), aff'd, 536 F.2d 758 (8th Cir. 1976) the court dismissed a complaint alleging that an Occupational Safety and Health Administration compliance officer had negligently failed to follow up a safety violation citation which resulted in injury to the plaintiff. The court could "find no indication that any law permits Nebraska to place upon private persons the duties cast upon federal officers by OSHA. The Act's thrust is to require designated federal officers to investigate, issue citations, and apply for enforcement orders by a federal court. Nothing resembling those duties devolves on a private person under OSHA
Similarly, in United States v. Smith, 324 F.2d 622, 624-625 (5th Cir. 1963), plaintiffs argued that government contracting officers, committed acts of negligence by failing to enforce the provisions of the Miller Act requiring that all those who undertake construction contracts with the United States furnish payment bonds. The court ruled that the Federal Tort Claims Act "simply cannot apply where the claimed negligence arises out of the failure of the United States to carry out a statutory duty in the conduct of its own affairs."
There can be no doubt that the mandate of a federal statute is a far stronger foundation for the creation of an actionable duty under the Federal Tort Claims Act than the administrative directive in the present case. The inclusion of orders in a statute not only indicates that Congress has made a definitive judgment that a particular class receive specific benefits or services, it also is far more likely to generate reliance than any internal regulation or directive. Thus the fact that courts have been reluctant to find liability despite the violation of specific federal statutory responsibilities strongly confirms our conclusion that the Southern Region's order in this case issued under the general authority of the Federal Aviation Act does not give rise to a legal obligation sufficient to support a cause of action under the Federal Tort Claims Act.
We should point out that there is a fine line but a vital and necessary one between the principle of holding the government responsible for the conduct by which it carries out its affairs when federal employees negligently injure the public and the principle that the government may be turned to as a final source of relief from the tragedies of life. As the court in Gibbs v. United States, 251 F.Supp. 391, 400 (E.D.Tenn.1965) noted, "Having decided to enter the broad field of the regulation of the flight and repair and modifications of aircraft and licensing of pilots, the Government becomes responsible for the care with which those activities are conducted. It may no longer take refuge behind the distinction between proprietary and governmental functions. But the Government nevertheless does not become an insurer. Its liability is subject to the same requirements of negligence and causation as would affect the liability of a private person in the same circumstances."
Certainly whether the Congress should take a more active role in providing compensation for the victims of air disasters is not an appropriate question for this court to decide. Moreover, to attempt to expand the relief available to victims and their families through the Federal Tort Claims Act in circumstances similar to those of this case would, we believe, have an unfortunate inhibiting effect on government safety measures. The end result of attaching liability to government attempts at all levels to supplement the safety precautions of private individuals and businesses, even when there is no reliance on the government's assistance, is far more likely
The passengers on this ill fated flight were acting for the highest of humanitarian motives at the time of the tragic crash. It would certainly be appropriate for a society to honor such conduct by taking those measures necessary to see to it that the families of the victims are adequately provided for in the future. However, making those kinds of decisions is beyond the scope of judicial power and authority. We are bound to apply the law and that duty requires the reversal of the district court's judgment in favor of the plaintiffs.
"Other powers and duties of Administrator.—(a) General.— The Administrator is empowered to perform such acts, to conduct such investigations, to issue and amend such orders, and to make and amend such general or special rules, regulations, and procedures, pursuant to and consistent with the provisions of this Act, as he shall deem necessary to carry out the provisions of, and to exercise and perform his powers and duties under, this Act."
See generally Jeffries v. United States, 477 F.2d 52 (9th Cir. 1973).