                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 13 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVID WALLACE, an individual; KRIS               No. 08-56086
WALLACE, an individual; CONCRETE
PAVING CONTRACTORS INC., a                       D.C. No. 5:07-cv-01529-VAP-OP
California corporation,

             Plaintiffs - Appellants,            MEMORANDUM *

  v.

UNITED STATES OF AMERICA
DEPARTMENT OF
TRANSPORTATION; FEDERAL
AVIATION ADMINISTRATION;
ROBINSON HELICOPTER COMPANY
INC., a California corporation; FRANK
ROBINSON, an individual; JOAN
MORTON, an individual, AKA Ingrid J.
Morton,

             Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                          Submitted November 4, 2009**
                              Pasadena, California

Before: SCHROEDER, BERZON and IKUTA, Circuit Judges.

      David Wallace was a passenger in a helicopter owned by the corporation of

which he is the president, Concrete Paving Contractors (“Concrete Paving”), and

manufactured by Robinson Helicopter Company (“Robinson”), when it crashed in

May 2005. The helicopter caught fire after impact, and Wallace was badly burned.

Wallace brought suit against Robinson and the United States Department of

Transportation under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b),

on behalf of himself, Concrete Paving, and his wife (all hereafter “Wallace”).

Wallace alleges that the helicopter’s fuel system was not “crashworthy” as required

by 14 C.F.R. § 27.952 and that the Federal Aviation Administration (“FAA”) was

negligent both in permitting Robinson to manufacture unsafe helicopters prior to

the implementation of § 27.952 and in failing to revoke such certificates after the

implementation of that regulation. Wallace also alleges that the FAA was

negligent in designating Ingrid Morton, a Robinson employee, as a Designated

Manufacturing Inspection Representative (“DMIR”).




        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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      The district court found that the claims fell within the discretionary function

exception of the FTCA, 28 U.S.C. § 2680, and that the court therefore lacked

subject matter jurisdiction. As Wallace has failed to identify any mandatory

regulation violated by the FAA, his allegations are clearly controlled by our cases

holding that FAA decisions pertaining to aircraft certification fall within the

discretionary function exception. We affirm.

      We review de novo the district court’s decision to dismiss for lack of subject

matter jurisdiction under the discretionary function exception. Terbush v. United

States, 516 F.3d 1125, 1128 (9th Cir. 2008). In determining whether a claim

otherwise permissible under the FTCA is precluded by the discretionary function

exception, we first consider whether the act in question “involv[es] an element of

judgment or choice,” and if so, “whether that judgment is of the kind that the

discretionary function exception was designed to shield.” United States v.

Gaubert, 499 U.S. 315, 322–23 (1990) (quoting Berkovitz v. United States, 486

U.S. 531, 536 (1988)). To survive a motion to dismiss, a complaint “must allege

facts which would support a finding that the challenged actions are not the kind of

conduct that can be said to be grounded in the policy of the regulatory regime.” Id.

at 324–25.




                                          3
      In United States v. S.A, Empresa de Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797 (1984), the Supreme Court held that the discretionary

function exception shielded the FAA from liability for its allegedly negligent

failure to inspect unsafe components of aircraft before issuing type certificates.

“When an agency determines the extent to which it will supervise the safety

procedures of private individuals, it is exercising discretionary regulatory of the

most basic kind.” Id. at 819–20. Therefore, both the decision to implement a

“spot-check” inspection system and the application of “spot-checking” to the

aircraft in question were immune from liability under the FTCA. Id. at 819. Our

circuit has followed Varig in cases alleging negligence in the aircraft certification

process. See GATX/Airlog Co. v. United States, 286 F.3d 1168 (9th Cir. 2002)

(holding that the FAA’s methodology for issuing a supplemental type certificate

fell within the discretionary function exception); Proctor v. United States, 781 F.2d

752 (9th Cir. 1986) (holding that Varig precluded claims of FAA negligence in

inspecting specific parts of an aircraft); Natural Gas Pipeline Co. v. United States,

742 F.2d 502 (9th Cir. 1984) (“Appellants’ challenge to the FAA’s execution of its

responsibility by failing to discover the defects sooner and failing to adequately

monitor the [manufacturer’s] operation is barred by the discretionary function

exception.”).


                                          4
      Wallace’s claims are indistinguishable from those we have held to fall

within the discretionary function exception. In essence, he challenges the FAA’s

decision to certify an aircraft that included an unsafe fuel system. We have held,

however, that “[a]lthough Varig involved an alleged negligent failure to inspect,

the Supreme Court wrote broadly in concluding that the discretionary function

exception precludes a tort action based on the conduct of the FAA in

certificating . . . aircraft.” GATX/Airlog, 286 F.3d at 1176 (internal citations

omitted).

      Wallace contends that 14 C.F.R. § 27.952, which requires helicopters to be

built with crashworthy fuel systems, imposes a duty of enforcement on the FAA.

This argument lacks merit. First, Wallace concedes that Robinson applied for and

received a type certificate before § 27.952 had become final. Moreover, even if §

27.952 had been in effect, it is not a “specific and mandatory regulation . . . which

creates clear duties incumbent upon . . . government actors,” as is required before

we will conclude that a regulation renders a government act nondiscretionary.

GATX/Airlog, 286 F.3d at 1177. Rather, § 27.952 imposes a duty on aircraft

manufacturers. See Varig. 467 U.S. at 816 (“[T]he duty to ensure that an aircraft

conforms to FAA safety regulations lies with the manufacturer, while the FAA

retains the responsibility for policing compliance.”). Finally, Wallace has pointed


                                           5
to no regulation that would require the FAA to decertify the aircraft after the

implementation of § 27.952.

      Wallace’s claim that the FAA was negligent in failing to ensure that Ingrid

Morton, a Robinson employee, was qualified to serve as a DMIR also fails.

Wallace acknowledges “the FAA’s discretionary authority to designate Morton as

a DMIR.” Reframing the allegation as one related to failing to gather “the

necessary background on Morton” does not remove this claim from the

discretionary function exemption. Cf. Berkovitz, 486 U.S. at 542–43. The

designation of DMIRs, like the certification of pilots addressed by this court in

Roundtree, is a “method of assuring that the federal aviation regulations will be

followed,” and thus an “inherently policy-oriented decision that requires

consideration of social and economic policies.” Roundtree v. United States, 40

F.3d 1036, 1039 (9th Cir. 1994) (internal quotation omitted).

      The district court thus properly dismissed Wallace’s claims, and did not

abuse its discretion in denying leave to amend. See Allen v. Beverly Hills, 911

F.2d 367, 373–74 (9th Cir. 1990).

      AFFIRMED.




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