Full opinion text
OPINION OF THE COURT WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW THEIS, District Judge. Before the Court in this multidistrict action are seventeen cases consolidated for pretrial proceedings and determination as to the legal issue of liability between the parties. All cases, as captioned in Appendix I attached hereto, either were originally filed in this court or were transferred here for consolidated pretrial proceedings by Order of the Judicial Panel for Multidistrict Litigation, entered on December 5, 1972. Subsequently, by stipulation of the parties in the Final Pretrial Order herein, it was agreed the liability issues as concern the liability of the United States and the liability, if any, of Wichita State University and the State of Kansas as an alleged tortfeasor to the United States as an alleged co-tortfeasor under the third-party complaint, be first tried and determined by this Court. Plaintiffs herein are suing the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., for recovery of damages for injuries and deaths resulting from the crash of a Martin 404 aircraft on October 2, 1970, in the vicinity of Silver Plume, Colorado. The United States, while denying any liability to plaintiffs, has also filed a third-party complaint against the State of Kansas and Wichita State University. After considerable delay of several years, due principally to the severe illness of a material witness, discovery was completed so the case could be tried. At trial to the Court, the parties presented evidence as to plaintiffs’ two extant causes of action against the United States, and as to defendant’s third-party claim against the State of Kansas. As their first cause of action, plaintiffs allege defendant United States negligently enforced Federal Aviation regulations and negligently investigated possible violations of such regulations, thus proximately causing the injuries and deaths of which plaintiffs here complain. Defendant alleges plaintiffs’ claim is barred by the discretionary exemption to the Federal Tort Claims Act, and even were it not so barred, defendant’s employees did not behave in a negligent manner. Defendant also contends the Federal Aviation Administration owed no actionable duty to plaintiffs herein under applicable state law. Plaintiffs also contend as a separate cause of action against the United States that an Authorized Inspector (AI), while acting in the cause and scope of employment for the United States, carelessly and negligently inspected, examined, tested, licensed and certified as airworthy the aircraft, when in fact such aircraft was not airworthy but unfit and unsafe to fly, thus proximately causing plaintiffs’ damages. Defendant alleges the Authorized Inspector was not an employee of the United States, that even if he were an employee the cause of action would be barred by the misrepresentation exception to the Federal Tort Claims Act; that such inspector did not behave negligently, and even if he did such negligence was not a proximate cause of the air crash. Defendant, in its third-party claim, alleges the State of Kansas, through its public corporation, Wichita State University, was actively negligent in the selection of Golden Eagle Aviation, Inc., who supplied the aircraft, crew, and services, and in the conduct of the University’s aviation transportation operations, and such negligence was a proximate cause of plaintiffs’ damages. Defendant therefore alleges if it is found liable to plaintiffs, such negligence giving rise to liability is merely passive and defendant is entitled to indemnification from third-party defendants. Third-party defendants deny negligence, contend even if they were negligent as alleged, such would be only passive negligence, and assert indemnification in favor of the United States is not rationally justified as a matter of justice, equity or public policy. After trial of the liability issue of this action and after considering the evidence, the credibility of witnesses, and the excellent briefs of counsel, the Court has made certain Findings of Fact, Conclusions of Law, and Opinion of the Court, as hereinafter set forth. For the purposes of brevity and convenience of composition, certain abbreviations or shortened titles are frequently used herein as follows: “FAA” means and refers to the Federal Aviation Administration; “FAR” or “FAR’S” means and refers to Federal Aviation Regulations; “GADO” means and refers to a General Aviation District Office; “Golden Eagle” refers to Golden Eagle Aviation, Inc., a corporation; “Western Electric” refers to Western Electric Company, a corporation. FINDINGS OF FACT 1. At all times relevant to this case, the Federal Aviation Administration maintained a General Aviation District Office at both Oklahoma City, Oklahoma, and Wichita, Kansas; an Air Carrier District Office at Fort Worth, Texas; offices of Federal Aviation Administration Regional Counsel at Kansas City, Kansas, and Fort Worth, Texas; and an office of Legal Counsel at the Federal Aviation Administration Aeronautical Center, at Oklahoma City, Oklahoma. 2. At all times relevant to events discussed herein, the following persons were employees of the Federal Aviation Administration (FAA) and were acting in the course and scope of their employment: (a) Melvin Hanson; (b) Billie Lee Abram; (c) Norman H. Plummer; (d) F. C. Woodruff. 3. At all times relevant to this case, Billie Lee Abram was the Chief of the General Aviation District Office (hereinafter referred to as “GADO”), of the Federal Aviation Administration, Wichita, Kansas; Melvin Hanson was the Chief of the GADO at Oklahoma City, Oklahoma; Norman H. Plummer was the Regional Counsel of the Federal Aviation Administration, with offices at Fort Worth, Texas; and F. C. Woodruff was a member of the legal staff of the FAA Aeronautical Center in Oklahoma City. 4. Golden Eagle Aviation, Inc. (hereinafter referred to as “Golden Eagle”), was incorporated on November 26, 1969, by John Kennedy, Bruce Danielson, and Ronald Skipper. During the period relevant to the events of this litigation, Skipper was President of Golden Eagle, Danielson was Vice-President and Secretary-Treasurer, and Kennedy was Vice-President of Operations. 5. On November 13, 1969, Golden Eagle applied to the FAA in Oklahoma City for an air taxi/commercial operator certificate under Part 135 of the Federal Aviation Regulations. 6. The FAA approved the Golden Eagle application on November 21, 1969. 7. Golden Eagle’s air taxi/commercial operator certificate entitled the company to engage in interstate commerce by furnishing both crew and an aircraft having a maximum gross weight not in excess of 12,500 pounds to another for compensation or hire. In order to engage in interstate commerce by furnishing for hire a crew and a plane in excess of 12,500 pounds, Golden Eagle would have had to qualify for and receive a commercial operator’s certificate under Part 121 of the Federal Aviation Regulations. At no time herein did Golden Eagle possess a commercial operator’s certificate under Part 121. 8. As individuals, Skipper, Danielson, and Kennedy were each properly certificated and qualified under Part 61 to pilot large aircraft. 9. A large aircraft is defined as any aircraft of more than 12,500 pounds, maximum certificated take-off weight. 10. A person may lease a large aircraft to another without having to comply with Part 121 certification requirements of the Federal Aviation Regulations. Likewise, a pilot who is properly certificated and rated under Part 61 may operate a large aircraft without having to comply with the Part 121 certification requirements of the Federal Aviation Regulations. However, a person who furnishes both the crew and a large aircraft to another for compensation or hire is deemed to be the aircraft operator and must possess a Part 121 commercial operator’s certificate. 11. In late 1969 and in 1970, the principals of Golden Eagle were primarily interested in acquiring air mail routes under their air taxi certificate. They placed bids for air mail contracts, but were not awarded a contract until the summer of 1970. 12. While attempting to obtain a lucrative air mail contract under its air taxi certification, Golden Eagle placed an advertisement in the Oklahoma City telephone directory in order to generate some immediate cash flow. Such advertisement stated in part: “GOLDEN EAGLE AVIATION Aviation Consultants & Commercial Operators Airlines — Travel Clubs — Airtaxi Aviation Services Pilots — Stewardess—Maintenance Aviation Insurance Consultants — Air Ambulance Call for Any Aviation Needs.” 13. Pursuant to the above advertisement, principals of Golden Eagle at various times acted as “aviation consultants,” assisting third parties in locating pilots and aircraft for private or commercial use. The pilots located in most instances before the Court were also principals or employees of Golden Eagle. The aircraft located and flown for third persons by Golden Eagle personnel in all instances proved to the Court were large aircraft. 14. Golden Eagle was not required to hold any FAA certificate in order to engage in consulting services to potential users of large aircraft, or to supply flight crew members to operators of large aircraft. 15. On November 23, 1969, the principals of Golden Eagle flew a DC-3 into the Wichita Airport, purchased fuel under the name “Golden Eagle,” and attended a Wichita State University football game. At that time they discussed with representatives of Wichita State University, Golden Eagle’s role in organizing transportation for the University basketball team during the 1969-1970 season. 16. Abram, the Chief of the Wichita GADO, reported to the Oklahoma City GADO that Golden Eagle personnel had flown a large aircraft into Wichita although Golden Eagle was only certified to commercially operate small aircraft for hire. On November 24, 1969, Melvin R. Hanson, Chief of Oklahoma City GADO, wrote to Golden Eagle to ascertain facts about the previous day’s flight in order to determine whether there were any indications of illegality. 17. On November 25,1969, Danielson, of Golden Eagle, replied to Hanson’s letter informing him the purposes of the November 23rd flight were to add a rating to Kennedy’s and Danielson’s licenses, to negotiate a little business in Wichita, and to have the pleasure of attending a football game. 18. No passengers or cargo were carried on the November 23,1969, flight, and therefore Federal Aviation Regulations requiring Part 121 certification for operation for hire of a large aircraft such as the DC-3 were not violated. 19. Golden Eagle entered into an agreement with Wichita State University, dated November 22, 1969, to transport the University basketball team during the 1969-1970 basketball season. In that agreement Golden Eagle agreed to provide Wichita State University with two pilots properly qualified to operate DC-3 type aircraft, one female stewardess, fuel, oil, ground services, and meals for nineteen passengers on twelve separate occasions, and to transport the passengers to the nearest suitable airport most convenient to Wichita State University. requirements. Wichita State agreed to pay Golden Eagle for the service according to a schedule set forth in the agreement. This agreement was signed by Ronald G. Skipper, of Golden Eagle, and Robert P. Kirkpatrick, of Wichita State University. 20. Prior to signing the agreement with Golden Eagle, Wichita State University did not investigate the legal status or qualifications of either Golden Eagle or the personnel of Golden Eagle who would fly as pilots. Wichita State did not independently investigate the ownership of the aircraft used nor check the physical condition of such aircraft prior to use thereof for transportation of University team members. 21. Through the efforts of Golden Eagle, Wichita State University also entered into an agreement, dated November 22, 1969, with Aero Data Link, a company formed and operated by John Kennedy, a vice-president of Golden Eagle, for the lease of an aircraft for the 1969-1970 basketball season. 22. Wichita State University later entered into an agreement with Jack Richards Aircraft Company, Inc., dated November 25, 1969, to lease a Douglas DC-3 aircraft to the University for the 1969-1970 basketball season. This lease was sent to the University by Golden Eagle to replace the Aero Data Link lease. Bruce Danielson, of Golden Eagle, explained by letter to the University that Golden Eagle’s attorney advised substitution of aircraft leases was necessary “to keep peace with the Feds,” and the University should “destroy” the old lease. The new lease was signed by Jack Richards and Robert Kirkpatrick. 23. On December 3, 1969, Skipper and Danielson piloted a DC-3 from Wichita to Las Cruces, New Mexico, and back, carrying members of the Wichita State University basketball team. Upon reporting into Wichita Flight Service, the pilots used the name “Shocker” and an erroneous flight number to identify the aircraft. Flight Service personnel called Abram, who personally went to the aircraft and talked with Skipper and Danielson. 24. Abram talked with the pilots but other than briefly viewing the lease and service contract, did not investigate the contractual arrangements whereby Golden Eagle personnel were piloting a large aircraft for hire and carrying passengers. Abram did, however, call Hanson at Oklahoma City GADO to report the incident. He indicated to Hanson that Wichita State University was the operator of the flight, having separately leased the aircraft which Golden Eagle personnel were piloting. 25. Hanson lectured Skipper, Danielson and Kennedy to disassociate the name of Golden Eagle from large aircraft operations, although he admitted they could, as properly licensed individuals, pilot such aircraft if the plane were separately leased by the operator. 26. On or about April 6, 1970, Golden Eagle provided a flight crew to the Western Electric Company to pilot and provide maintenance for a DC-6A freighter carrying Western Electric cargo during a trucker’s strike. Golden Eagle also located the aircraft and provided the aircraft leases to Western Electric. Western Electric arranged with Golden Eagle for the total cost of the flight operation, including the cost of plane rental. 27. The above referenced transaction for lease of the DC-6A aircraft by Western Electric was made between Western Electric and Aero Data Link. 28. The agreement between Western Electric and Aero Data Link was dated April 6, 1970, and signed with the name Donald Pinger, d/b/a Aero Data Link. Donald Pinger, a friend of Golden Eagle principals, never saw nor signed such document. On or about April 11,1970, however, Kennedy, of Golden Eagle, asked Pinger, who became an employee of Golden Eagle at about that date, to allow business of Aero Data Link to be transacted in Pinger’s name rather than Kennedy’s. Pinger agreed and thereafter opened a post office box and bank account in Indianapolis, Indiana in the name of Aero Data Link, which account was never used. An Oklahoma City bank account and post office box were also opened in Oklahoma City for Aero Data Link. Pinger also personally signed several contracts between Western Electric and Aero Data Link for lease of aircraft, and signed several blank contracts and checks at Kennedy’s request after Pinger left the Oklahoma City area on or about April 28, 1970. Pinger never received any compensation from Kennedy or Golden Eagle personnel for use of his name, or from Western Electric for leasing the aircraft. 29. Aero Data Link leased the DC-6A aircraft involved in the April 6, 1970, contract with Western Electric from Concare Aircraft Leasing Corporation of Tulsa, Oklahoma. That lease was signed for Aero Data Link by John P. Kennedy, d/b/a Aero Data Link of Huntington, New York. 30. The agreements dated April 6, 1970, between Western Electric and Golden Eagle, and Western Electric and Aero Data Link were formally entered into after April 6th and backdated. 31. Western Electric paid separate checks to Golden Eagle and Aero Data Link. However, Pinger, who was supposedly doing business as Aero Data Link, personally received no money from the checks. Concare was paid by check from Aero Data Link, but these payments were actually arranged and executed by Golden Eagle personnel after obtaining Pinger’s signature on blank checks. 32. A letter to Western Electric, purportedly dated April 11, 1970, and purportedly signed by Pinger, d/b/a Aero Data Link, was in fact not written or signed by Pinger. The letter is a misrepresentation of Pinger’s and Aero Data Link’s true role in the leasing of the plane which Golden Eagle flew for Western Electric on or about April 6, 1970. 33. After preliminary correspondence, on April 24, 1970, Bert Katzenmeyer, temporary Athletic Director at Wichita State University, accepted by letter Golden Eagle’s bid outlining the total cost for transportation, including the aircraft lease and services, for five road games in the fall of 1970. On the same day Katzenmeyer further informed Danielson, of Golden Eagle, that a sixth game had been scheduled at College Station, Texas, for which transportation would be needed. 34. In middle or late April, 1970, Rick Meyers and John Whitehead, two pilots residing in Oklahoma City, heard that Golden Eagle had recently operated a DC-6, utilizing Richard Holden as a crew member and David Barnholtz as flight engineer, when Holden and Barnholtz were unqualified to act in those functions. Furthermore, Golden Eagle was not qualified to operate large aircraft for hire. Meyers and Whitehead reported this information to FAA inspectors Hanson and Crocker, of the Oklahoma City GADO. They were thanked and told that the matter would be investigated. 35. Shortly thereafter, Inspector Crock-er requested Richard Holden to appear at the GADO office on May 1, 1970. Holden appeared on that date and was interviewed by GADO Chief Hanson, but refused to give a written statement at that time. 36. Holden composed a written statement dated May 5, 1970, outlining his involvement with a flight April 9, 1970, from Oklahoma City to Omaha, Nebraska, and then Columbus, Ohio. He stated he was employed by Golden Eagle to crew a DC-6A separately leased by Western Electric for purposes of carrying cargo for Western Electric. This statement was received by the FAA on May 16, 1970. 37. On or about May 1, 1970, Hanson received a report from an Air Carrier Inspector in Memphis, Tennessee, that Golden Eagle was operating a DC-6 into Memphis. 38. On or about May 3, 1970, Golden Eagle principals met with Hanson to discuss their contractual relationship with Western Electric. They stated Western Electric had leased the plane separately and had arranged for Golden Eagle to provide only the crew. They furnished Hanson a copy of the service agreement between Golden Eagle and Western Electric. Hanson informed them he could not render an opinion on the legality of the operation under Federal Air Regulations, but would send the contract to an FAA legal adviser 39. On May 22,1970, Hanson sent a copy of the Western Electric-Golden Eagle service agreement to Donald W. Loftin, a Regional FAA Enforcement Specialist, for further investigation. 40. On May 27, 1970, Loftin’s office obtained further factual information about the ownership of the aircraft utilized by Golden Eagle and Western Electric. 41. On June 2, 1970, Loftin’s office wrote to Regional Counsel, requesting a legal opinion on the facts which had been obtained at that time. 42. On June 3, 1970, Danielson, of Golden Eagle, wrote Farmer, of Wichita State University, submitting “a proposal and recommendation for charter air service year 1969-1970 basketball road games.” (Danielson mistakenly stated 1969-1970, although he intended 1970-1971.) The letter stated: “Aero-Data-Link has been contacted and they have agreed to lease to you for your road games a Martin-404 type aircraft.” 43. On June 4, 1970, FAA Regional Counsel, Plummer, wrote to Regional Flight Standards, saying it was necessary to obtain a copy of the aircraft lease between Western Electric and Aero Data Link in order to render a legal opinion. In addition, Plummer requested Flight Standards to obtain a copy of the lease or sales agreement between Concare Leasing and Aero Data Link. 44. The principals of Golden Eagle were requested to provide copies of the leases, but claimed to have no copies, and also claimed Pinger, the. alleged principal of Aero Data Link, was unavailable. 45. On July 21, 1970, Golden Eagle and Wichita State University entered into an aviation services agreement for the transportation of the University football team for the fall of 1970. That agreement specified Wichita State would lease an aircraft from a third party and Golden Eagle would provide a fully qualified flight crew. In addition, Golden Eagle agreed to provide certain inflight catering services, cabin attendants, and to supply fuel, oil and routine maintenance for the aircraft. The agreement also stated the University would provide for passenger liability insurance to comply with FAA and CAB regulations. This agreement was signed by Bruce Danielson, of Golden Eagle, and Bert Katzenmeyer, of Wichita State University. The agreement was drafted by Golden Eagle’s attorney. Under the agreement, Wichita State paid one check to Golden Eagle for the cost of the entire flight, and Golden Eagle then paid Jack Richards for the lease of the aircraft, and also paid any amounts due crew members. 46. In 1970, the FAA initiated enforcement action in the form of “Notice of Proposed Certificate Action” against Leland Everett, an employee of Golden Eagle. This action to suspend Everett’s airline transport pilot rating was initiated because Everett had been denied a medical certificate in October of 1969, on the basis of a character or behavior disorder. 47. On August 7, 1970, Woodruff, a member of the legal staff of the FAA Aeronautical Center in Oklahoma City, served the notice of proposed certificate action upon Everett in the offices of Golden Eagle, with Skipper and another Golden Eagle official present. Woodruff informed Skipper and Everett that at that time Everett had no valid medical certificate and could not legally be used by Golden Eagle as a pilot. At Skipper’s inquiry, Woodruff said he did not then know of any enforcement action against Golden Eagle for previous use of Everett as a pilot, but that any subsequent use would be illegal. 48. Everett requested an informal conference upon the proposed suspension of his airline transport pilot rating in which he could present new evidence. He also reapplied for a medical certificate. On September 30, 1970, Woodruff was advised by the FAA Flight Surgeon that Everett’s medical certificate would again be denied on the basis of a character or behavior disorder, and he was also informed the FAA intended to immediately issue an order suspending Everett’s airline transport rating. This was not actually done, however, until an emergency order suspending Everett’s rating was issued October 8, 1970. 49. Wichita State University intended to utilize a DC-6 aircraft for the 1970 football season. Through services of Golden Eagle in locating the aircraft and sending Wichita State the lease to be signed, such an aircraft was initially leased from Jack Richards Aircraft Company. However, Jack Richards’ DC-6 was severely damaged by a windstorm, so Richards agreed to substitute two Martin 404 aircraft until the DC-6 was repaired. Individual trip leases were prepared for execution prior to each trip with the Martin 404’s. 50. On July 23, 1970, the Oklahoma City GADO obtained and forwarded a copy of the aircraft lease agreement between Con-care Aircraft Leasing Corporation and John P. Kennedy, d/b/a Aero Data Link of Huntington, New York. However, the FAA was still unable to obtain a copy of the lease between Aero Data Link and Western Electric. 51. On August 12,1970, Kennedy mailed a copy of the lease between Aero Data Link and Western Electric to Hanson of the FAA. The lease was received by Hanson on August 14, 1970, and was forwarded to Regional Counsel the same day. 52. On August 14,1970, Abram, Chief of Wichita GADO, became aware of a flyer distributed by Wichita State concerning a proposed trip upon which persons could obtain air transportation to College Station, Texas, for the Wichita State-Texas A&M football game in return for a $60.00 “donation.” 53. Immediately upon receiving this flyer, Abram called Floyd Farmer, of Wichita State, to ascertain further facts about the proposed trip. Farmer told Abram the proposed trip was a Golden Eagle operation. 54. Abram contacted the GADO office in Oklahoma City and determined Golden Eagle had no Part 121 certificate allowing it to operate large aircraft carrying passengers for hire. 55. Abram also consulted FAA Regional Counsel in Kansas City as to the legality of the operation and what steps he should take. Counsel authorized Abram to contact the University and tell them the proposed flight might be a violation of regulations. 56. On the same day, Abram called Farmer, of Wichita State, and advised him the trip proposed by the flyer might be a violation of the regulations. Abram did not specifically advise Farmer the reason the trip might be a violation of regulations was because Golden Eagle was not certificated to operate large aircraft for hire, although this was the basis for Abram’s opinion. Farmer told Abram the trip to College Station as advertised in the flyer, was off. 57. The trip proposal, as distinguished from the actual operation of an aircraft, did not constitute a violation of regulations. 58. In view of Abram’s knowledge of the December 3, 1969 Golden Eagle flight, and his knowledge of Golden Eagle’s certification under Part 135 and not Part 121 of the Federal Aviation Regulations, Abram was negligent in not further pursuing his investigation of the proposed Wichita State trip to College Station, Texas, and the contractual arrangements therefor. 59. Abram sent a copy of the flyer, together with his inspection and surveillance report, to Hanson, in Oklahoma City. Hanson, in turn, forwarded the flyer through channels to Regional Counsel in Ft. Worth for additional background information. 60. On August 20, 1970, FAA Regional Counsel Plummer, having analyzed the specific information contained in the leases and service agreements with Western Electric, expressed the opinion those documents indicated Golden Eagle had, in effect, been the operator of the aircraft leased to Western Electric, and therefore a Part 121 commercial operator certificate was required for any operation undertaken pursuant to the contracts. Plummer based his opinion primarily upon the service agreement between Western Electric and Golden Eagle, stating in his legal document that “when all the provisions of the agreement are considered together and in context, the agreement constitutes an arrangement whereby Golden Eagle provides virtually the same type of aviation transportation services that a commercial operator provides when duly certificated.” 61. Plummer’s opinion was forwarded to Oklahoma City GADO with the instructions: “Please take appropriate action.” In 1970, the responsibility for investigating suspected violations of Part 121 was vested in Air Carrier District Offices. Therefore, Hanson’s office forwarded Plummer’s legal opinion to the Air Carrier District Office in Ft. Worth, Texas, for purposes of investigation. 62. In August, 1970, the Air Carrier District Office still needed to obtain additional facts to ascertain sufficient and admissible evidence to determine whether Golden Eagle had in fact violated regulations by its Western Electric operation. By reason of Holden’s statement, the FAA had some proof a flight had taken place under the contract between Western Electric and Golden Eagle on April 9, 1970, but the specific functions actually performed by Golden Eagle for Western Electric on that and other flights needed to be proved by records, receipts, evidence of payments, etc. 63. On August 31, 1970, pursuant to FAA policy guidelines for letters of investigation, such a letter was written by the Air Carrier District Office to the President of Golden Eagle, informing him Golden Eagle’s arrangement with Western Electric appeared to be in violation of the Federal Aviation Act of 1958 and Part 121 of the Federal Aviation Regulations. The FAA further advised Golden Eagle the matter was under investigation and Golden Eagle would be given an opportunity to present any evidence or statements in its behalf within twenty days. 64. On September 3, 1970, representatives of the Air Carrier District Office met with representatives of Western Electric. Western Electric’s representatives stated the contractual arrangements with Golden Eagle had been investigated by Western Electric attorneys and were approved by the Company’s legal department. They took the position the contractual arrangement between Western Electric and Golden Eagle was not in violation of the Federal Aviation Regulations because Western Electric had maintained operational control of the aircraft. The FAA requested Western Electric to make available all cancelled checks payable to Golden Eagle, as well as any contract or lease agreement relating to the subject operation. Additionally, it was requested that Western Electric submit a statement regarding the entire relationship between Golden Eagle and Western Electric. Western Electric’s representatives stated they would make necessary arrangements to obtain this material and a statement would be forwarded. 65. On September 8, 1970, the FAA Air Carrier District Office wrote to the legal and patent division of Western Electric in New York, stating Western Electric could aid in the FAA’s effort to determine whether or not a violation had been committed by furnishing certain specific documents. 66. On September 11, 1970, an attorney for Western Electric sent a copy of Western’s agreement with Golden Eagle and stated other documents would be furnished shortly. 67. On September 15, 1970, Golden Eagle wrote to the Air Carrier District Office of the FAA and asserted operational control of the DC-6A had remained with Western Electric at all times. Golden Eagle stated it had acted as Aviation Consultant to assist Western Electric in locating a plane which Western Electric leased, in furnishing services for the aircraft, and in locating qualified crew members who acted as individual contractors although payment was made through Golden Eagle. Golden Eagle asserted that control of destinations, times of departure, and cargo loads, remained with Western Electric at all times. Golden Eagle contended it had in no way violated Federal Aviation Regulations. 68. On September 29,1970, the FAA Air Carrier District Office wrote to Western Electric’s attorney, stating it had not yet received the documents it had requested both by letter and telephone. The FAA requested Western Electric’s help in expediting those documents. The documents were not sent by Western Electric to the FAA Air Carrier District Office until October 5, 1970. 69. On the morning of October 2, 1970, pursuant to the aviation services agreement between Golden Eagle and Wichita State, two Martin 404 aircraft, registration numbers N464M and N470M, were ferried from Oklahoma City, Oklahoma to Wichita, Kansas, for the purpose of carrying members of the Wichita State football team, coaches, and several football fans from Wichita to Logan, Utah, for a scheduled game, and back again to Wichita. 70. N464M arrived at Wichita, Kansas, on the morning of October 2, 1970, at 8:50 Central Daylight time, 7:50 Mountain Daylight time. 71. Catering supplies and football gear were placed on board the aircraft on its arrival in Wichita, Kansas, and the passengers boarded the aircraft. 72. N464M carried thirty-six passengers and a crew of three, including a pilot, co-pilot and stewardess, together with a friend of the crew, who was to serve as an additional assistant stewardess. 73. Five gallons of oil were added to each engine supply tank of aircraft N464M, at Wichita, Kansas, on October 2, 1970. 74. The pilot in command of N464M on October 2,1970, was Danny E. Crocker, and the co-pilot was Ronald Skipper, President of Golden Eagle. 75. At all material times, Danny E. Crocker, age 27, possessed Airline Transport Pilot Certificate No. 1625375, with ratings for airplane multi-engine land, DC-3, DC-6, DC-7, and commercial privileges for Martin 202 and Martin 404 aircraft, and airplane single engine land. He also held a Flight Instructor’s Certificate for airplanes and instruments, which had expired April 30, 1969, and a Mechanic’s Certificate No. 2014532, with airframe and powerplant ratings. He held a First Class Medical Certificate, issued by the FAA on August 21,1970, with no limitations. He had accumulated approximately 2,452 total flying hours, of which 123 were in Martin '404 equipment. 76. Captain Danny E. Crocker received a Martin 404 type rating for his Commercial Pilot’s Certificate on April 4, 1969. 77. Co-pilot Ronald G. Skipper, age 35, possessed Airline Transport Pilot Certificate No. 1429879, with ratings for airplane multi-engine land, DC-3, and commercial privileges for airplane single engine land. He also held a Flight Instructor’s Certificate for airplane and instruments, which expired January 31, 1969. He held a First Class Medical Certificate, issued by the FAA on July 27, 1970, with the limitation: “holder shall wear correcting glasses while exercising the privileges of his Airman’s Certificate.” Ronald Skipper was not type rated in the Martin 404. 78. The pilot in command of N464M was required to possess a Martin 404 type rating pursuant to the provisions of 14 C.F.R. § 61.16(a)(1) (1970), but the co-pilot was not. 79. Aircraft N464M was a Martin 404, Serial No. 14151, with two Pratt and Whitney R2800 CB-3 engines and Hamilton standard 43E60-311 propellers. 80. N464M was manufactured by the Glenn L. Martin Company and sold to Eastern Airlines on March 21, 1952. Eastern sold N464M to Mohawk Airlines in August of 1961. 81. Mohawk Airlines sold N464M to Ozark Airlines in December of 1965. 82. On June 12, 1967, Ozark Airlines sold N464M to Fairchild Hiller. The aircraft was placed in storage at Las Vegas, Nevada, where it remained until it was sold to Jack Richards Aircraft Company. 83. Fairchild Hiller sold N464M to Jack Richards Aircraft Company of Oklahoma City, Oklahoma, on February 16, 1968 in an “as is” condition. 84. On October 2,1970, total time on the airframe of N464M was 38,593 hours, 26 minutes; time since overhaul of the left engine was 1,011 hours, 5 minutes, and time since overhaul on the right engine 1,747 hours, 14 minutes. 85. On October 2, 1970, aircraft N464M and N470M were owned by Jack Richards Company, Oklahoma City, Oklahoma. The principals of Golden Eagle had no ownership interest in Jack Richards Aircraft Company, nor did principals of Jack Richards Aircraft Company have ownership interest in Golden Eagle Aviation, Inc. 86. Donald Sizemore, a certificated mechanic with airframe (A) and Powerplant (P) and authorized inspector (AI) ratings, performed an annual inspection on N464M at Las Vegas, Nevada, approximately one month prior to the date of the accident. In order that the plane’s airworthiness certificate remain valid the FAA required such inspection by a duly authorized AI and his certification as a result of such inspection that the aircraft was found to be in airworthy condition and approved to return to service. 87. Airworthiness certificates, which only the FAA Administrator or his representatives are empowered to issue, are issued at the time a new aircraft is manufactured, except for certain minor instances not herein relevant. 88. An AI, after conducting the annual inspection of an aircraft, does not issue or reissue an airworthiness certificate — he merely certifies in the aircraft maintenance records that in his inspection he found the aircraft to be in airworthy condition and therefore approves it for return to service. Without such inspection and certification, the airworthiness certificate is invalid, although it may physically remain in the aircraft. 89. The FAA does not furnish AI’s their tools, equipment, job training, or a place to work. 90. The FAA does not pay nor otherwise compensate AI’s for performing annual inspections of aircraft. Sizemore was compensated by Jack Richards Aircraft, and not by the FAA for his annual inspection of N464M. The FAA received no part of the fee paid Sizemore by Richards for performing the required inspection. 91. At all material times, AI’s were entitled to perform annual inspections wherever and whenever they chose, so long as an AI performed enough inspections each year to maintain his rating. At all material times, AI’s were not required to notify the FAA when they were performing, or had completed, an annual inspection. 92. An applicant for AI rating who meets FAA eligibility and experience requirements and passes certain oral, written and practical tests, is entitled as of right to an AI license. If he continues to fulfill certain minimal requirements the FAA provides for automatic renewal of his license without retesting. 93. Sizemore’s work was required to be carried out according to specific and detailed standards established by FAA regulations as supplemented and explained in FAA brochures, guidelines and airworthiness directives furnished by the FAA. Some FAA advisory circulars are free to AI’s, while others are provided at the AI’s expense. 94. The FAA exercised some indirect supervision over Sizemore’s work product. His work was subject to review and supervision by FAA officials at any time. 95. Records of major repairs and alterations and a copy of the list of any unairworthy discrepancies found during the annual inspection are to be forwarded by the AI to the FAA. 96. If an AI does not perform his work in accordance with detailed regulations, the FAA can charge him with such failure and terminate his license to perform such inspections. The AI can normally demand hearing upon such charge prior to revocation of his license, unless there is an emergency revocation. 97. The FAA, pursuant to statutory authority, delegated to AI’s the authority to conduct annual inspections to relieve the burden on FAA paid employees. Prior to 1956 most aircraft annual inspections were performed by Federal CAB inspectors. 98. In his annual inspection of N464M, Sizemore failed to perform the most accurate method of compression check upon the engines. However, the method he did use, while the engines were cold, showed satisfactory readings. If an engine is tested cold and shows satisfactory compression readings, it is not necessary to warm the engine or to borescope the cylinders for more accurate readings. 99. In his inspection, Sizemore also failed to perform a landing gear retraction test; failed to examine X-rays of the engine mount prior to signing off the logbooks, although he did in fact see such X-rays at a later time prior to October 2, 1970; failed to perform a fabric check on the rudder; and failed to report the absent and useless seatbelts on the plane. 100. Sizemore did not report the condition of seatbelts he found in an unairworthy condition because Richards had agreed to replace the seatbelts before the plane went into service. This is not, however, a proper reason for Sizemore’s failure to list and require repair of faulty seatbelts before certification. 101. After Sizemore’s inspection of N464M at Las Vegas, Nevada, but prior tó X-raying of engine mounts which would take place in Oklahoma City, Oklahoma, on September 11, 1970, the FAA issued a special airworthiness certificate for N464M with operating limitations for a ferry flight. Sizemore later signed and returned to Richards the aircraft maintenance records in which he certified the aircraft as airworthy and approved it for return to service, thus re-validating the initial airworthiness certificate for N464M. 102. Even if the FAA had known of Sizemore’s negligence in failing to fulfill regulations governing his annual inspection of N464M, and had issued an emergency revocation of N464M’s aircraft airworthiness certificate, such revocation would have only prevented this specific aircraft from being flown. Golden Eagle could still have operated the flight on October 2, 1970, using a different aircraft. 103. The crew of N464M performed all appropriate checklists prior to departure from Oklahoma City, Wichita, and Denver, on October 2, 1970. 104. The checklist gives the flight crew knowledge as to how the aircraft systems and engines are operating, and whether the aircraft is safe to make a takeoff. 105. Included in the checklist items actually performed on N464M was a power check, which determined all power-plant systems were performing normally. 106. During the flight of N464M on October 2, 1970, co-pilot Skipper routinely scanned the engine instruments, the configuration of which is such that he could and would have noticed any irregularity in the instrument readings had such occurred and lasted for any appreciable amount of time. At no time on October 2, 1970, from departure in Oklahoma City until his recollection ceased shortly before impact, did Skipper note any engine instrument indicating either engine was functioning outside its normal operational limits. 107. The aircraft N464M arrived at Stapleton International Airport, Denver, Colorado, at approximately 11:19 a. m. M.D.T., for planned refueling. 108. Twelve gallons of oil were placed in each engine supply tank of aircraft N464M at Denver, Colorado. 109. N464M was serviced with fuel at Denver, where the tanks were filled, bringing the total fuel load on board to 1,370 gallons. 110. The flight planning for N464M called for a northbound departure from Denver, on established airways, via Laramie, Wyoming. This route parallels the mountain ranges and offers ample time to climb to a safe altitude before turning westward over the mountains. The distance over this route is virtually the same as over the route ultimately flown by N464M. 111. At no time did the crew of N464M inform the FAA of their intention to depart from established airways during the flight from Denver, Colorado, to Logan, Utah. 112. The captain of N464M did not request a weather briefing from the United States Weather Bureau at the National Weather Service office in Denver, Colorado, prior to departure of N464M from Denver. 113. The maximum certified gross weight for takeoff of a Martin 404 aircraft at Denver, assuming airport elevation to be 5,330 feet above mean sea level (M.S.L.), and assuming the aircraft has been serviced with anti-detonation injection fluid, is approximately 42,975 pounds. If the aircraft has not been serviced with anti-detonation injection fluid, the maximum permissible takeoff weight at that altitude is 39,500 pounds. 114. Stapleton International Airport at Denver, Colorado, is located at an altitude of 5,330 feet M.S.L. 115. Aircraft N464M utilized anti-detonation injection fluid at the time of its takeoff at Stapleton Airport. 116. At takeoff from Denver, the takeoff gross weight of N464M was approximately 48,165 pounds. 117. Prior to departure from Stapleton Airport on October 2, 1970, co-pilot Skipper purchased aeronautical and sectional charts for a contemplated scenic route. 118. Prior to departure from Stapleton Airport, co-pilot Skipper advised the pilot the aircraft would proceed over a scenic route of flight via Loveland Pass rather than flying the established airways from Denver to Logan, Utah. 119. N464M departed Stapleton International Airport at Denver, Colorado, at 12:29 p. m. M.D.T. 120. As N464M took off from the Denver airport, the tower reported to the pilots that quite a bit of smoke was coming from the right engine on takeoff. Such phenomena is a relatively common indication of a rich fuel mixture at high altitudes, however, and does not necessarily indicate any mechanical malfunction in the engines. 121. N464M was last observed by the FAA Air Traffic Control Specialist at Denver approximately four miles north of the departure end of Runway 35 and on a northerly heading. 122. It is a pilot’s duty, whether flying under Part 91, 121, or 135 of Federal Aviation Regulations, to assure himself pri- or to takeoff that the aircraft is within its specified weight limits. The pilots of N464M flew into mountainous terrain with a plane overloaded by approximately 5,000 pounds. 123. N464M departed Denver’s Staple-ton Airport on October 2, 1970, and proceeded north until the aircraft intercepted the airway between Denver and Kremmling, Colorado, at which point the aircraft turned west and subsequently turned slightly south off of the established airway, proceeded past Nevadaville, and intercepted Clear Creek Valley in the vicinity of Idaho Springs, Colorado. 124. After intercepting Clear Creek Valley, N464M proceeded along and slightly south of U.S. Highway 6 past Georgetown and Silver Plume, Colorado, toward Love-land Pass. 125. The elevation of Georgetown, Colorado, which N464M flew over as it entered Clear Creek Valley, is 8,512 feet M.S.L. The elevation at Silver Plume, Colorado, is 9,118 feet M.S.L. From Silver Plume, the valley floor of Clear Creek Valley continues to rise, rising most sharply near Loveland Pass to reach an approximate elevation of 11,990 feet M.S.L. at the Pass. 126. In the area west of Georgetown, Colorado, the mountains on either side of Clear Creek Valley range from 12,447 feet M.S.L. to over 13,000 feet M.S.L. 127. Across the end of the valley at the Loveland Ski Resort area, the ground rises from the valley floor at 10,600 feet M.S.L. to 12,700 feet at the Continental Divide. 128. The minimum altitude necessary to clear Loveland Pass is approximately 12,000 feet M.S.L. 129. The distance from Dry Gulch to Loveland Pass is approximately two miles. 130. At the 10,800 foot contour, the valley width of Clear Creek Valley at ground level is approximately 2,400 feet. 131. The distance to the lowest point (12,517 feet M.S.L.) of the Continental Divide to the west of the course being taken by N464M when it arrived in the vicinity of Dry Gulch, was approximately three miles. 132. N464M was flown into Clear Creek Valley at an unreasonably low altitude. N464M flew into the Valley at an approximate altitude of 8,384-9,840 feet M.S.L., and it had climbed to only approximately 11,000 feet by the time it was near Dry Gulch. From its position over Dry Gulch, N464M was incapable of climbing in a straightforward course sufficiently to clear Loveland Pass. 133. At a point approximately over Dry Gulch, co-pilot Skipper, who had handled the aircraft controls since departure from Denver, decided to execute a teardrop turn in order to gain altitude. As he completed a sharp turn to the right, the aircraft began a deep vibration. The pilot, Crocker, looked out the right side where the right wing was coming closer to trees on the mountainside, said, “I have it,” took over the plane’s controls, and made a sharp turn to the left. The left turn was so sharp that a passenger by the name of Stevens, who had walked up to stand behind the pilots in the cockpit, fell down. The plane then levelled and there was a surge of power to the engines just before the plane began hitting tops of trees on the side of the mountain. 134. N464M struck the tops of trees at an elevation of 10,800 feet M.S.L. 135. The time of the crash was approximately 1:00 p. m. M.D.T. 136. After the initial impact, N464M continued forward for approximately 500 feet before coming to a complete stop. Upon coming to a stop, the fusilage of the plane remained relatively intact, although most of the seats had pulled loose and were piled, along with passengers and luggage, against the front wall dividing the fusilage from the cockpit. Shortly after coming to a stop, the entire fusilage caught fire and burned. 137. Power conditions at impact of N464M were 2400 RPM, 165 BMEP (brake mean effective pressure) and 1400 BHP (brake horsepower). The engines on N464M were producing full climb power on impact and were functioning in an airworthy manner. 138. There is no evidence the crash of N464M was caused either wholly or in part by faulty landing gear, engine mounts, or fabric. Nor was there persuasive evidence that faulty seat belts or engines contributed to causation of the crash. 139. Weather conditions were not a factor in the crash. At the time of the crash and in the vicinity of the crash site, the weather was clear with unlimited ceiling and visibility. The wind was light and variable with no evidence of turbulence or up- and-down draft activity. At the time of the crash the flight was being conducted under visual flight rules. 140. The “Pasten Seat Belts” sign was not illuminated at the time N464M crashed, nor at any time immediately prior thereto. Some passengers had seat belts on and some did not. At least two passengers tried to fasten their seat belts but found them broken. At least one passenger sat in a seat with no seat belt, and one passenger was standing up near the cockpit at the time of the crash. 141. On October 8,1970, the FAA issued an Emergency Order of Revocation, immediately revoking Golden Eagle’s air taxi/commercial operator certificate. The Order was amended twice, once on October 20, 1970, and again on November 4, 1970. 142. The grounds for revocation included in the Second Amended Order of November 4,1970, were: Golden Eagle engaged in carriage of the Wichita State University football team for hire in air commerce on September 11, 13, 25, 27, and October 2, 1970, without a commercial operator operating certificate or appropriate operations specifications issued under Part 121 of the Federal Aviation Regulations; Golden Eagle operated N470M on nine flights in interstate commerce in an unairworthy condition; Golden Eagle operated both N470M and N464M on October 2, 1970, when overweight; and Golden Eagle employed Leland T. Everett as a pilot or co-pilot in September and October, 1970, when he did not have a current and valid medical certificate, and therefore did not have an airman certificate authorizing him to serve in the capacity for which he was employed. 143. Golden Eagle appealed the FAA Emergency Orders of Revocation to a National Transportation Safety Board Hearings Examiner, who affirmed the FAA Orders on November 25, 1970. 144. Golden Eagle further appealed the initial decision of the Hearings Examiner to the full National Transportation Safety Board. On January 8, 1971, the Board affirmed the findings of the Hearing Examiner. 145. Prior to October 2,1970, and specifically in late August and September, 1970, the FAA was diligently investigating and preparing a case against Golden Eagle for suspected violation of Federal Aviation Regulations in connection with the flights for Western Electric. CONCLUSIONS OF LAW 1. The intent of Congress in enacting the Federal Aviation Act of 1958 was to improve air safety and to prevent or reduce tragic aviation accidents. The Federal Aviation Act of 1958 and Regulations adopted pursuant thereto create and establish an actionable duty on the part of FAA personnel to persons in the zone of danger, that is, air passengers, carrier pilots and personnel to carry out operational activities undertaken pursuant to the Act and Regulations in non-negligent manner. Part A of the Court’s “Memorandum and Order on Dispositive Motions,” filed January 31, 1977, addresses this issue more comprehensively and is included herein by reference. 2. The plaintiffs, or decedents for whom plaintiffs here sue, were all persons to whom a duty was owed to use due care by the United States and its FAA agents and/or employees. 3. An FAA inspector does not have discretion to ignore or approve a suspected violation of Federal Air Regulations. However, he has the discretion and authority to determine how extensively to investigate a suspected violation. 4. An FAA inspector has discretion and authority to recommend what sanction, if any, is appropriate for a known violation. Available sanctions include administrative, legal, criminal and certain others. The final decision as to legal sanctions to be imposed is made jointly by the Flight Standards Office and FAA legal counsel. 5. An FAA inspector has discretion to dispose of a known violation by informal administrative action when he deems such appropriate, and no legal action can thereafter be taken by the FAA for such violation. 6. Emergency Revocation of an aircraft airworthiness certificate may only forbid the specific aircraft from being flown upon proof it is unairworthy. Such procedure does not prevent an operator from utilizing another aircraft. 7. Emergency Revocation of an air taxi/commercial operator certificate requires Regional Counsel of the FAA to be prepared to prove FAA allegations before a National Transportation Safety Board hearing examiner immediately upon certificate-holder’s appeal, or else risk dismissal of the enforcement action. 8. Under any non-emergency legal enforcement action against an operating certificate undertaken by Regional Counsel, the accused is entitled to notice, an adjudicatory hearing before a National Transportation Safety Board hearing examiner, and appeal to the full Board. 9. The discretionary function exception to the Federal Tort Claims Act found at 28 U.S.C. § 2680(a), is a jurisdictional bar to consideration of a legal claim if it applies. Smith v. United States, 546 F.2d 872 (10th Cir. 1976); First National Bank in Albuquerque v. United States, 552 F.2d 370 (10th Cir. 1977). 10. The actions of FAA personnel herein alleged to be negligently performed, were discretionary for purposes of the Federal Tort Claims Act exception mandating governmental immunity for discretionary acts even if such discretion be abused. 11. Even were the investigative and enforcement duties of FAA Flight Service personnel not discretionary under the Federal Tort Claims Act exception, the negligence of Abram found herein was not a proximate cause of the air crash and the consequent injuries and deaths of which plaintiffs complain. 12. An Authorized Inspector (AI), while performing inspection duties, is an employee of the FAA, as defined in and for purposes of the Federal Tort Claims Act. 13. The negligent inspection and certification of an aircraft by an AI is not barred from the Court’s consideration as to liability of the Government by the misrepresentation exception to the Federal Tort Claims Act. 14. Martin 404 aircraft N464M was technically unairworthy on October 2, 1970, prior to its crash near Silver Plume, Colorado. However, such technically unairworthy condition was not a proximate cause of the crash. Therefore, negligence of the AI in inspecting and certifying N464M as airworthy was not a proximate cause of the injuries and deaths of which plaintiffs complain. 15. The third party complaint of the United States filed herein against the State of Kansas and Wichita State University alleging negligence of the State of Kansas through its public corporation, Wichita State University, was the proximate cause of the air crash and seeking indemnification from the State of Kansas as a joint tortfeasor in case federal governmental liability is adjudicated as a joint tortfeasor, is not barred under the Eleventh Amendment to the Constitution of the United States, as is more completely set forth in the Court’s Memorandum and Order previously filed herein on May 26, 1973. 16. However, such liability of the State of Kansas, being solely contingent upon a judgment of liability in this cause against the United States, the State of Kansas has no liability herein. Since the United States has no liability as a tortfeasor, the Court finds it unnecessary to adjudicate any possible claimed tort liability against the State of Kansas. 17. Judgment is entered for the United States and against the plaintiffs herein in each of these multi-district cases. 18. Judgment is ordered for the third party defendant, State of Kansas, and against third party plaintiff, United States, on the third party complaint filed herein. OPINION OF THE COURT INVESTIGATIVE AND ENFORCEMENT DUTIES OF FAA PERSONNEL AS ALLEGED IN COUNT I ARE DISCRETIONARY Plaintiffs’ Count I alleges certain FAA officials negligently performed or failed to perform nondiscretionary duties involving enforcement of FAA regulations. Plaintiffs claim FAA officials Hanson, Abram, Plummer, and certain others knew or should have known from facts at their disposal of Golden Eagle’s pattern of conduct violative of Part 121 of the Federal Aviation Regulations; failed to adequately investigate when Golden Eagle’s connections with Wichita State University became apparent; failed to advise Wichita State University of the illegality and possible danger involved in the use of Golden Eagle’s services; and failed to take timely enforcement action to halt the pattern of continuing violations by Golden Eagle. Plaintiffs contend these duties are mandatory, as set out in FAA Handbook 8030.7A, “Compliance and Enforcement,” the FAA Handbook 2150.2, “Handbook for Handling Legal Aspects of Enforcement Cases,” and particularly in a 1967 Order of the Federal Aviation Administrator outlining compliance and enforcement policy within the FAA. (See Appendix II for relevant sections of Handbooks and 1967 Order.) The primary negligence alleged and for which proof was offered by plaintiffs, is that of Hanson and Abram in failing to adequately and expeditiously investigate and report Golden Eagle’s violations and, upon receipt of Regional Counsel Plummer’s legal opinion that Golden Eagle had entered into a contract specifying actions violative of the Federal Aviation Regulations, in failing to take appropriate action available to immediately stop Golden Eagle’s operations. Although plaintiffs claim Hanson or Abram should have specifically warned Wichita State University of possible illegality of the Golden Eagle operations, there is nothing stated in the regulations, handbooks or orders outlining the duties of an inspector requiring him to directly warn persons involved with a possible violator prior to completion of investigation or initiation of enforcement against the violator. Therefore, the “warning” claim is merely another facet of plaintiffs’ claim of improper investigation and inappropriate choice of legal enforcement action by Hanson and Abram. Defendant first alleges this Court has no jurisdiction to consider whether the investigative and enforcement actions or failures to act alleged herein were negligent because such duties are discretionary and exempted from the Federal Tort Claims Act waiver of sovereign immunity. 28 U.S.C. § 2680(a) excepts from Tort Claims Act provisions: “Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Courts have struggled to define discretionary functions or duties as applied to administrative officials since the adoption of the Federal Tort Claims Act. The general rule is: “A duty is discretionary if it involves judgment, planning or policy decisions. It is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required.” Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977), citing Nelms v. Laird, 4 Cir., 442 F.2d 1163, rev’d on other grounds, 406 U.S. 797, 92 S.Ct. 1899, 32 L. Ed.2d 499; Hendry v. United