Kelly

Opinion by Judge McKEOWN; Concurrence by Judge FERGUSON

This case strikes at the heart of one of the discretionary functions of the United States Forest Service — formulating the nature and type of flight training required of firefighter pilots. At issue is whether the United States is immune from liability under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994) (“FTCA”), for the Forest Service’s failure to require its contract pilots to undergo a specific type and form of training. Following a bench trial, the district court entered judgment for the families and estates of two pilots killed during a mission to drop retardant on a forest fire, finding that the Forest Service’s failure to require the training contributed to the deaths. The government appealed, arguing that the Forest Service’s conduct is protected by the discretionary function exception to the FTCA. 1 We agree with the government. The extent and type of the Forest Service’s flight training is a matter left to the agency’s discretion and is susceptible to policy analysis. Accordingly, we reverse the district court and remand with direction to dismiss this case for lack of subject matter…

concurring:

I concur in Judge McKeown’s opinion. I write to emphasize the facts surrounding the airplane crash.

On the final run of the day when they taxied out for takeoff, the pilots made mistakes, including failing to enter read back instructions from the central tower or communicate the read back to each other and crossing an active runway without permission from the traffic controller. However, they were extremely well-qualified and experienced pilots. Both of them had received some formal crew resource management (“CRM”) training and both pilots consistently demonstrated proficiency in crew coordination.

When Kelly and Lynn arrived at the fire, they entered a circular holding pattern and contacted ground firefighters for instructions. After receiving the requested drop pattern, the tanker left its orbit and began descending. At that point, something went wrong. The district court, adopting the findings of the government’s reconstruction expert, found that when the crew attempted to activate the tanker’s auxiliary jet engines in preparation for the run, the engines “flamed out,” probably because the crew had failed to transfer fuel from the plane’s main tanks to the…