Administrator's conclusion, based upon the application of those standards to any individual case, retains its "discretionary" features. ". . . where the grant of a license depends upon the balancing of several factors and the grant or refusal to grant is made without reliance upon any readily ascertainable rule or standard, the courts will hold the judgment to be discretionary. Hendry v. United States, 418 F.2d at 782. But where clear standards are set forth to which are matched the actual individual facts, the courts will hold the judgment to be operational and not discretionary. Pennsylvania R.R. Co. v. United States, 124 F. Supp. 52, 64 (D.N.J. 1954). The latter is the case at hand. The Administrator has been empowered with the responsibility for air safety and in line with that authority he has promulgated regulations which an applicant is required to meet in order to obtain an airman medical certificate. He delegated the determination of whether an individual meets those standards to the Federal Air Surgeon. Title 14 C.F.R. 67.25 provides that the authority is given to the Federal Air Surgeon, aviation medical examiners, and other F.A.A. medical staff members to the extent necessary to (1) examine applicants for and holders of medical certificates for compliance with applicable medical standards; and (2) issue, renew, or deny medical certificates to applicants and holders based upon compliance or noncompliance with applicable medical standards.
By promulgating those regulations the Administrator is not only exercising his responsibility for air safety, but he is also effectively regulating an entire occupation, that of the commercial airline pilot. This double effect bears an added burden. In the words of Judge McGuire, writing in Union Trust Company v. United States, 113 F. Supp. 80, at 84 (D.D.C. 1953): "When the Government, as here, takes upon itself the function -- as it claims it must -- of the regulation of air commerce and the responsibility, among other things, of regulating the flow of traffic at a public airport, the assumption of such a responsibility involves something further, namely, not only an activity designed to be protective of the interest of that amorphous group known as the public as a whole, but that of individuals as well, against potential hazards incident to such performance and implicit in its undertaking." If the government assumes the responsibility of regulating the commercial air pilot occupation in furtherance of its "end-objective" of securing air safety, it must do so in a careful manner. The "discretionary function" exemption embodied in the Federal Tort Claims Act should not be used to effect a mantle of protection for negligent action. Cf. Indian Towing Co., Inc. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955).
Since an applicant is entitled to a certificate if he qualifies under the regulations (14 C.F.R. 67.11), application of that policy to the individual case is an administrative decision at the operational level which if negligently done will make the government liable. Since such is plaintiff's claim, all facts well pleaded in his complaint are to be assumed as true and he must have a chance to prove his case.
Plaintiff contends further that by its action F.A.A. has wrongfully interfered with his prospective economic advantage, thus creating a tort cognizable under the Federal Tort Claims Act. A specific exception to the tort liability of the United States under the Act provides that the United States shall not be liable for "any claim arising out of . . . interference with contract rights." 28 U.S.C. § 2680(h). Interference with prospective pecuniary advantage has been held to be included within the term "interference with contract rights." Fletcher v. Veterans Administration, 103 F. Supp. 654 (E.D. Mich. 1952); Dupree v. United States, 264 F.2d 140 (3d Cir.), cert. den. 361 U.S. 823, 4 L. Ed. 2d 67, 80 S. Ct. 69, reh. den. 361 U.S. 921, 80 S. Ct. 253, 4 L. Ed. 2d 189 (1959). The plaintiff's assertion, therefore, that F.A.A. has tortuously interfered with his prospective economic advantage falls within this exception to the Federal Tort Claims Act. Taxay v. United States, 345 F. Supp. 1284 (D.D.C. 1972).
The defendant further requests the Court pursuant to 28 U.S.C. § 2680(h) to strike the allegation in the complaint regarding misrepresentation and medical malpractice. Plaintiff states, however, that these allegations go to negligence in conduct and not to the fact of misrepresentation itself. If such be the case, the Court's decision on this part of the motion must be left for further motion based upon a fuller development of the facts.
Wherefore, having considered the memoranda submitted in this case, the Court enters the following order without a hearing pursuant to Local Rule 9(f).
It is this 12th day of March, 1973, Ordered
1. That defendant's motion to dismiss the complaint is denied as to plaintiff's claim based on alleged negligence;
2. That defendant's motion to dismiss the claim denominated "intentional interference with the advantage plaintiff enjoyed from his business as a commercial airline pilot" is granted.
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