UNITED STATES OF AMERICA, PETITIONER V. S. A. EMPRESA DE VIACAO
AEREA RIO GRANDENSE (VARIG AIRLINES)

   UNITED STATES OF AMERICA, PETITIONER V. EMMA ROSA MASCHER, ET AL.

   UNITED STATES OF AMERICA, PETITIONER V. UNITED SCOTTISH INSURANCE
CO., ET AL.

   No. 82-1349,

   No. 82-1350

   In the Supreme Court of the United States

   October Term, 1983

   On Writs of Certiorari to the United States Court of Appeals for
the Ninth Circuit

   Brief for the United States

                       PARTIES TO THE PROCEEDING

   Respondents not named in the caption to No. 82-1349 are listed in
82-1349 Pet. App. 18a-24a.  Respondents not named in the caption to
No. 82-1350 are Kathryn Fleming, Maxime Cearley, Simone Weaver, and
John W. Dowdle.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
      1. Federal regulation of air safety
      2. The FAA's airworthiness certification process
      3. The United Scottish Insurance case
      4. The Varig Airlines and Mascher cases
   Summary of argument
   Argument:
      I. The Federal Aviation Administration's failure to
          discover a safety defect while carrying out its
          regulatory duty of certifying the airworthiness of
          aircraft in commercial aviation does not render the
          United States liable for damages under the Federal
          Tort Cliams Act as "a private individual under like
          circumstances"
          A. The FAA's inspection and certification process
             is a governmental function, which Congress did not
             intend to subject to tort liability
          B. The state law duty embodied in the good samaritan
             doctrine cannot be applied to the FAA's inspection
             and certification process
             1. The FAA did not perform a necessary service for
                respondents
             2. Respondents did not and could not reasonably rely
                on the FAA's inspections and certifications in
                these cases
             3. The relationship between the FAA and
                respondendents is too remote to create a duty of
                care
      II. The discretionary function exception to the Federal
          Tort Claims Act bars liability based on the alleged
          negligence of the FAA in carrying out its regulatory
          duty of issuing airworthiness certificates
          A. The discretionary function exception is intended
             to shield regulatory activities such as those
             undertaken by the FAA from private tort litigation
          B. The FAA's certification process is permeated
             with discretionary conduct of the sort typically
             protected by Section 2680(a)
             1. The decision to approve an aircraft's design
                requires scientific and engineering judgment
             2. The FAA has discretion to approve aircraft as
                airworthy without checking every detail to assure
                compliance with minimum standards
      III. The misrepresentation exception to the Federal Tort
          Claims Act bars respondents' claims based solely on
          their reliance on the FAA's inspection and certification
          activities
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals in Varig Airlines and Mascher,
No. 82-1349 (Pet. App. 1a-7a), is reported at 692 F.2d 1205.  /1/ The
findings of fact and conclusions of law of the district court (Pet.
App. 8a-13a) are not reported.

   The opinion of the court of appeals in United Scottish Insurance,
No. 82-1350 (Pet. App. 1a-6a), is reported at 692 F.2d 1209.  The
opinion of the district court (Pet. App. 7a-15a) and its findings of
fact and conclusions of law (id. at 16a-27a) are not reported.  An
earlier opinion of the court of appeals in United Scottish Insurance
is reported at 614 F.2d 188.

                             JURISDICTION

   The judgments of the court of appeals in No. 82-1349 and No.
82-1350 were entered on October 8, 1982 (82-1349 Pet. App. 16a, 17a;
82-1350 Pet. App. 30a).  On December 28, 1982, Justice Rehnquist
extended the time within which to file petitions for a writ of
certiorari to and including February 11, 1983.  The petitions were
filed on February 10, 1983 and were granted on May 16, 1983.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The relevant provisions of the Federal Tort Claims Act are set out
in a statutory appendix (App., infra, 1a).

                          QUESTIONS PRESENTED

   1. Whether the United States is liable under the Federal Tort
Claims Act as a "private individual under like circumstances" for the
Federal Aviation Administration's alleged failure to discover a safety
defect while carrying out its regulatory duty of certifying the
airworthiness of aircraft in commercial aviation.

   2. Whether suits against the Untied States alleging that the FAA
negligently certified an aircraft's design and a heater's installation
as complying with minimum safety standards, as part of the agency's
effort to regulate compliance with those standards, are barred as
claims based upon the performance of a "discretionary function" within
the meaning of 28 U.S.C. 2680(a).

   3. Whether suits against the United States alleging that the FAA
negligently inspected and certified an aircraft's design and a
heater's installation are barred as "claim(s) arising out of * * *
misrepresentation" within the meaning of 28 U.S.C. 2680(h).

                               STATEMENT

                  1. Federal Regulation of Air Safety

   The federal government first entered the field of general aviation
safety in 1926, when Congress passed the Air Commerce Act, ch. 344, 44
Stat. 568 et seq.  Prior to that time regulation of the industry had
been left to the states or municipalities.  "(T)he Air Commerce Act *
* * asserted the right of the federal government to regulate
interstate flying and provided for the inspection and regulation of
commercial aircraft * * * ." E. Freudenthal, The Aviation Business 77
(1940).

   Regulatory authority under the Act was delegated to the Secretary
of Commerce, with a specific provision calling for the "rating of
aircraft of the United States as to their airworthiness." Section 3(b)
of the Air Commerce Act of 1926, 44 Stat. 569.  The Secretary was
authorized to require "full particulars" regarding the design and
materials needed to construct the aircraft as a condition to
registration (ibid.).  He was expressly given discretion to accept
reports from qualified persons employed by the manufacturer or to
require the examination of aircraft by employees of the federal
government (ibid.).  In granting the Secretary this discretion,
Congress made plain its understanding that the government was not the
primary protector of civil aviation safety.  As the House Report on
the Act explained (House Comm. on Interstate and Foreign Commerce,
69th Cong., 1st Sess., Civil Aeronautics:  Legislative History of the
Air Commerce Act of 1926 34 (1928)):

         It is not to be expected that Government representatives
      will, for instance, individually inspect each aircraft for its
      airworthiness from day to day.  Rather, Federal inspection will
      take the form of seeing to it that operators install proper
      inspection systems of their own and of checking up from time to
      time the actual effect of the system used by the operator.

   In the more than 50 years since the enactment of the Air Commerce
Act, the basic role of the federal government with regard to
inspection and certification of civil aircraft has not changed.  The
safety standards have become more detailed, but the concept remains
that the manufacturer or operator of the aircraft retains the ultimate
responsibility to make certain that the aircraft satisfies those
standards.  Thus, in enacting the Civil Aeronautics Act of 1938, which
transferred the responsibility for regulating air safely from the
Secretary of Commerce to the Civil Aeronautics Authority (CAA), "(t)he
existing methods of safety regulation (were) permitted to remain
virtually as they (were) under existing law * * * ." H.R. Rep. No.
2254, 75th Cong., 3d Sess. 2 (1938).  See also id. at 4.  /2/ Indeed,
Congress added Section 605(a) of the Act, which "expressly makes it
the duty of air carriers and their employees to comply with the
regulations of the Authority regarding the inspection, maintenance,
overhaul and repair of equipment." H.R. Conf. Rep. No. 2635, (Pt. 1),
75th Cong., 3d Sess. 82 (1938).

   In 1958, Congress again transferred regulatory authority over
aviation safety, this time to the Federal Aviation Agency.  This
agency later was renamed the Federal Aviation Administration (FAA) and
was placed in the Department of Transportation.  Pub. L. 89-670,
Sections 3(c), 6(c)(1), 80 Stat. 932, 937 (1966).  In the Federal
Aviation Act of 1958, 49 U.S.C. (& Supp. V) 1301 et seq., as it exists
today, Congress has directed the Secretary of Transportation generally
"to promote safety of flight of civil aircraft" by prescribing
"minimum standards governing the design, materials, workmanship,
construction, and performance of aircraft * * * ." 49 U.S.C. 1421(a)
and (1).  At the same time, Congress retained the provision from the
1938 Act that imposed the primary duty on "every person (in the
aviation industry) engaged in operating, inspecting, maintaining, or
overhauling equipment to observe and comply" with the statutory and
administrative standards prescribed by the Secretary.  49 U.S.C.
1425(a).  See also 49 U.S.C. 1421(b)

           2. The FAA's Airworthiness Certification Process

   In order to monitor adequately the aviation industry's compliance
with the Secretary of Transportation's minimum safety standards,
Congress provided generally for a multi-step process for certifying
the safety of aircraft.  The FAA, acting as the Secretary's designee,
has promulgated extensive regulations establishing minimum safety
standards that must be satisfied by the designer or manufacturer of an
aircraft at each step in the certification process.  Each step
culminates in the issuance of a certificate by the FAA;  it is
unlawful to operate in air commerce any aircraft that does not have a
current "airworthiness certificate." 49 U.S.C. (& Supp. V) 1430(a).

   Pursuant to its mandate "to promote safety of flight" by
prescribing "minimum standards governing the design, materials,
workmanship, construction, and performance of aircraft * * * " (49
U.S.C. 1421(a)), the FAA has promulgated Part 21 of the Federal
Aviation Regulations (14 C.F.R.) entitled Certification Procedures For
Products and Parts.  In addition, and pursuant to the same mandate,
the FAA has promulgated Parts 23, 25, 27, 29, 31, 33, and 35 of the
Federal Aviation Regulations.  Each of these parts concerns a specific
category of aircraft or product (normal category airplanes, transport
category airplanes, normal category rotorcraft, transport category
rotorcraft, aircraft engines and propellers).  Collectively, these
parts have become known as the FAA's Airworthiness Standards, and in
all, they account for over 500 pages of text in Title 14 of the Code
of Federal Regulations.

   Before introducing a new type of aircraft, a manufacturer must
first obtain a "type certificate," which requires FAA approval of the
basic design of the aircraft.  49 U.S.C. 1423(a);  14 C.F.R.
21.11-21.53.  The manufacturer supplies the FAA with design drawings,
which FAA employees or private employees who represent the agency
examine for compliance with minimum safety standards.  Through this
process, which may take years to complete, a basic design is approved
and a type certificate is issued.  See generally National Academy of
Sciences, Committee on FAA Airworthiness Certification Procedures,
Improving Air Safety 19-20 (1980) (hereinafter "NAS Report").  /3/

   The manufacturer then applies for a "production certificate" based
on a prototype of the aircraft.  49 U.S.C. 1423(b);  14 C.F.R.
21.131-21.165.  This certificate authorizes the manufacturer to
produce copies of the prototype so long as they are identical to the
"type" approved.  The manufacturer must supply detailed information
regarding materials used and production methods employed.  14 C.F.R.
21.143.  In addition, FAA employees or designated representatives (see
page 8 & note 7, infra) inspect the prototype and test fly it "to
determine compliance with the applicable (minimum safety standards)."
14 C.F.R. 21.157.

   After the manufacturer receives a production certificate, and
assuming no limitations are imposed on the certificate, it may begin
mass production of the approved aircraft.  The manufacturer must,
however, obtain an "airworthiness certificate" for each aircraft that
is assembled.  This requires that the aircraft be inspected by FAA
employees or designated representatives of the manufacturer to
determine whether the plane conforms to the prior certifications and
all minimum safety standards.  49 U.S.C. 1423(c);  14 C.F.R.
21.171-21.199.

   An additional certificate is required for aircraft that are altered
by the introduction of a major change in the type design.  14 C.F.R.
21.113.  In order to obtain a "supplemental type certificate," the
applicant must supply the FAA with drawings and other data sufficient
to "show that the altered product meets applicable airworthiness
requirements * * * ." 14 C.F.R. 21.115.  The FAA's review is often
limited to an examination of photographs or diagrams of the proposed
change.  FAA, Order Type Certification 31-32 (reprint 1967)
(hereinafter cited as "Handbook").  /4/ Unlike the inspection process
that is followed for other certifications (see pages 8-9, infra), the
FAA's Handbook requires a physical inspection of the "prototype
modification" if compliance "cannot be determined adequately from an
evaluation of the technical data." Id. at 32.  The inspections are to
be conducted by "an FAA representative." Ibid.

   With regard to conformity, the FAA's Handbook clearly states that
"(i)t is the primary responsibility of manufacturing inspectors to
determine that prototype products * * * conform with drawings (and)
specifications * * * ." Handbook, supra, at 39.  Furthermore, the
intensity of the agency's inspection varies depending on its
experience with the manufacturer.  For manufacturers that have a
record of acceptable quality control and inspection, the FAA's
"conformity determination may be made through a planned system of
spot-checking * * * and by reviewing inspection records and materials
review dispositions." Ibid.  /5/

   One last certificate issued by the FAA, the Class I Export
Certificate of Airworthiness, is relevant to these cases.  14 C.F.R.
21-321-21.339.  This certificate, which may be obtained from the FAA
upon request, informs a foreign government that a particular aircraft
exported from the United States complies with the design approved by
the agency and is in condition for safe operation at the time of
export.  The aircraft involved in the accident giving rise to the
Varig and Mascher cases was exported to Brazil.

   In light of the extensiveness and complexity of the safety
standards (14 C.F.R. 23.1-23.1589) and the large number of aircraft
requiring certification, the FAA is unable to monitor or inspect
directly every aspect of every design, prototype or assembled
aircraft.  Indeed, since there are fewer than 400 engineers employed
by the FAA, it is plain that they can perform only a small percentage
of the inspections required for certifications.  See NAS Report,
supra, at 29.  Accordingly, consistent with the statutory scheme (49
U.S.C. 1425(a)), the regulations impose upon each applicant for a
certificate an obligation, inter alia, to "make all inspections and
tests necessary to determine * * * (c)ompliance with the applicable
airworthiness * * * requirements." 14 C.F.R. 21.33(b)(1).  /6/ In
addition, the vast majority of the FAA's inspections are performed by
"designated engineering representatives," who typically are employees
of the manufacturer or operator of the aircraft, but are licensed by
the FAA.  14 C.F.R. 183.29.  /7/

   For each aircraft, therefore, literally dozens of inspections are
conducted by different individuals -- most of whom are not federal
employees -- with engineering expertise in a particular area.  /8/
Indeed, it is not uncommon for airworthiness certificates for mass
produced aircraft to be issued without any FAA employee's ever having
looked at the specific aircraft;  virtually all inspections at the
plant are conducted by designated representatives of the manufacturer.
 /9/ NAS Report, supra, at 29-30.  FAA representatives do no more than
spot check the manufacturers' safety controls and sign the certificate
based on the designated representatives' assurances that the aircraft
complies with FAA standards.  Id. at 32.  The FAA-signed certificate
does not indicate who conducted the various inspections performed on
the different parts of the aircraft (J.A. 278).

                 3. The United Scottish Insurance Case

   a. On October 8, 1968, a DeHavilland Dove aircraft, owned and
operated by an air taxi service doing business as Catalina Vegas
Airlines, crashed three minutes after taking off from Las Vegas,
Nevada en route to San Diego, California.  See 614 F.2d 188, 189
(1979).  The pilot, co-pilot and two passengers were killed (ibid.).
The cause of the crash was an in-flight fire located in the forward
baggage compartments of the airplane.

   The airplane that crashed was manufactured in 1951 in the United
Kingdom.  At some point prior to 1965, the airplane was purchased by
Air Wisconsin, another air taxi operator.  In 1965, pursuant to a
contract with Air Wisconsin, Aerodyne Engineering Corporation
("Aerodyne"), a large and well respected manufacturer in the aviation
industry (see J.A. 234), installed a gasoline fueled heater into both
the DeHavilland Dove that crashed and a sister airplane also owned by
the airline (614 F.2d at 190).  Aerodyne applied for a supplemental
type certificate (see page 6, supra) to authorize the installation.
Thereafter, the heater was installed by Aerodyne and, pursuant to the
FAA's Handbook, should have been inspected by representatives of both
Aerodyne and the FAA (see pages 6-7, supra;  J.A. 233-234).  The
supplemental type certificate was issued in 1965.  /10/

   In 1966, the airplane was sold to respondent Dowdle, who owned
Catalina-Vegas Airlines.  Dowdle sent a mechanic to Wisconsin to check
out the airplane;  relying in part on the supplemental type
certificate as an indication of the airworthiness of the airplane,
Dowdle's mechanic recommended that the plane be purchased (J.A. 229).
Between 1966 and the crash in 1968, Dowdle's employees inspected the
aircraft on at least eight different occasions, including two major
yearly inspections of the gasoline heater (J.A. 232-233).

   b. The First Trial and Appeal.  In the wake of the crash, five law
suits were filed against the United States under the Federal Tort
Claims Act, 28 U.S.C. (& Supp. V) 2671 et seq., in the United States
District Court for the Southern District of California.  Three suits
for wrongful death were filed by the estates of victims of the
accident;  one suit for property damage to the DeHavilland Dove was
filed by respondent Dowdle, the owner of the air taxi service;  and
one suit for monies paid for liability coverage on behalf of the owner
of the plane was filed by a group of insurance companies. /11/

   After trial, the district court entered judgment for respondents.
The court found that the crash occurred because the gasoline line
leading to the heater was not adequately clamped to reduce vibration
(J.A. 309-310).  The court concluded that the excessive vibration,
coupled with a faulty connection in the line between copper and
stainless steel tubing, allowed the gasoline to leak and ignite (J.A.
314-315).  Relying upon 14 C.F.R. 23.993, which requires fuel lines to
have sufficient support to "prevent excessive vibration," the court
held that the aircraft was not airworthy as "supplemented" and that
the government was negligent in certifying an installation that did
not comply with its regulations.  The district court also found no
contributory negligence on the part of any of the respondents.  /12/

   The court of appeals reversed (614 F.2d 188 (1979)).  The court of
appeals held that the district court erred in ruling that a federal
statutory duty "automatically give(s) rise to a duty of care to which
a state's negligence per se doctrine would be applied" (id. at 193).
Rather, because the United States is liable only "in the same manner
and to the same extent as a private individual under like
circumstances," 28 U.S.C. 2674, "(t)he crucial inquiry is whether, in
undertaking the inspection, a duty arose under state law because of
the relationship thereby created -- the good samaritan rule" (614 F.2d
at 194).  The court of appeals expressly declined (id. at 190) to
consider contentions that respondents' suits were barred by the
discretionary function and misrepresentation exceptions to the Federal
Tort Claims Act, 28 U.S.C. 2680(a) and (h), and instead remanded the
case to the district court to determine whether the evidence was
sufficient to support a finding of liability under the good samaritan
doctrine.

   c. The District Court's Decision on Remand.  On remand, the
district court, after taking additional testimony, /13/ again entered
judgment in favor of respondents.  The court, applying California law
(82-1350 Pet. App. 11a), found that California courts have recognized
tort liability under the good samaritan rule as set forth in Sections
323 and 324A of the Restatement (Second) of Torts (1965).  /14/
Although the district court was "reluctant to conclude (that) the
government's inspection increased the risk of harm in 'some positive
way'" (82-1350 Pet App. 14a, quoting Blessing v. United States, 447 F.
Supp. 1160, 1199 (E.D. Pa. 1978)), it determined that the United
States was liable under the good samaritan rule because respondents
"have demonstrated the requisite degree of reliance on the
government's inspection and certification.  The task of inspection,
which is undertaken to protect passengers, is relied upon by such
individuals, and if it is negligently performed, it gives rise to the
very dangers it was intended to prevent" (82-1350 Pet. App. 14a).

   d. The Court of Appeals' Decision.  The court of appeals affirmed
(82-1350 Pet. App. 1a-6a).  The court held (id. at 3a) that the
government had performed a "service" to decedents and the airline
owner within the meaning of the good samaritan doctrine because "the
F.A.A.' sregulatory activities are performed for the public as a
whole" and "(w)hen voluntarily performing activities solely for the
safety of the public, the F.A.A. performs a service for others." The
court also concluded that, "(h)aving chosen to make aircraft safety
inspections and to certify the results, the government reasonably
could expect that members of the public would rely on the government's
certification of airworthiness" (id. at 3a-4a).

   Having found that the district court properly imposed liability on
the government under state tort law, the court of appeals considered
whether respondents' claims were barred by either the
misrepresentation or discretionary function exceptions to the Tort
Claims Act.  The court ruled that the misrepresentation exception did
not bar this action because "(t)he basis of the (respondents') claim *
* * is not the misrepresentation or misinformation contained in the
certificate, but the negligence of the F.A.A.'s inspection on which
the airworthiness certificate was issued" (82-1350 Pet. App. 4a-5a).
The court also held that the discretionary function exception was
inapplicable because, in light of the detailed FAA regulations, there
was "no room for policy judgment" in the inspection and certification
of the aircraft (id. at 5a-6a).

   Judge Chambers concurred (82-1350 Pet. App. 6a), stating that "(m)
ost of us thought when the Federal Tort Claims Act was passed that the
discretionary exception * * * would preclude recovery on the facts of
the two cases we decide today, but the developing law seems to have
overtaken us." Judge Chambers did not cite the "developing law" upon
which he relied.

                4. The Varig Airlines and Mascher Cases

   a. These consolidated cases involve the crash of a Boeing 707
airplane, which was designed, manufactured, tested, inspected and
assembled by the Boeing Company (82-1349 Pet. App. 9a).  The Civil
Aeronautics Agency (CAA), a predecessor of the Federal Aviation
Administration, was responsible for ensuring that the designs, plans,
specifications and performance data for the Boeing 707 aircraft were
inspected for conformity to the agency's minimum safety standards.
The CAA issued a type certificate in 1958, 15 years prior to the
accident at issue here (ibid.).

   Boeing sold the airplane to Seaboard Airlines for domestic use.  In
1969, Seaboard resold the plane to respondent Varig Airlines, a
Brazilian commercial air carrier (ibid.).  /15/ At that time the
airplane was removed from the United States Civil Aircraft Registry
and placed on the Brazilian registry (14 C.F.R. 21.335(e)(1);  J.A.
103-104).  Consequently, the FAA airworthiness certificate previously
issued to the airplane became invalid and, indeed, was no longer
required by federal law so long as the plane did not fly within the
airspace of the United States (ibid.).  The ultimate responsibility
for regulating the airworthiness of the airplane then rested with the
state of registry (in this case, Brazil).  See 49 U.S.C. (& Supp. V)
1401 and 1508(b).

   On July 11, 1973, the Boeing 707 airplane crashed while on a
commercial flight from Rio de Janeiro to Paris, France (82-1349 Pet.
App. 8a).  A few minutes before the scheduled arrival at Orly Airport,
a fire broke out in one of the aft lavatories (82-1349 Pet. App. 2a).
Thick, black smoke quickly filled the entire cabin and cockpit area
and caused the airplane to make a crash landing into a field a few
miles from the airport (ibid.).  All but 11 of the 135 persons aboard
died from asphyxiation caused by inhaling toxic gases (ibid.). A
post-impact fire consumed most of the air fuselage, including the aft
lavatory structure and most of the floor and cargo area beneath and
forward of the aft lavatories.

   b. The District Court Proceedings.  Following the accident, two
consolidated actions were filed against the United States under the
FTCA in the United States District Court for the Central District of
California.  The Varig Airlines suit involved a claim for damages for
the destroyed Boeing 707.  The Mascher suit involved claims for
wrongful death brought by families and personal representatives of 62
passengers.  /16/

   Respondents claimed that the pre-impact fire originated in the
towel disposal area located below the sink unit of one of the aft
lavatories of the airplane and was caused either by an electrical
malfunction or by passenger carelessness.  They alleged that the towel
disposal area was not capable of containing fire as required by agency
regulations and that the CAA was negligent in its inspection of the
plane and issuance of a type certificate for the Boeing 707 in 1958 --
15 years prior to the crash.  /17/

   The district court entered summary judgment for the United States
(82-1349 Pet. App. 8a-13a).  The court first noted that the Federal
Tort Claims Act subjects the United States to liability only where a
private person would be liable in "like circumstances" (id. at 10a);
the court held that California law does not recognize a duty giving
rise to liability in tort for inspection and certification activities
(id. at 10a).  The court further held that the FAA's inspection and
certification responsibilities were regulatory functions, not
operational services, and "(did) not give rise to an actionable duty
in tort under California law" that extended to respondents (ibid.).
Specifically, the district court ruled that "the benefits of (the
FAA's inspections) flow to the general public at large and not to any
individual so as to render the United States liable for negligence in
their performance" (id. at 11a) and that the FAA's actions did not
relieve respondent Varig of the primary responsibility for the safety
of the plane (id. at 12a).

   Although the district court found no basis for imposing liability
on the government based on any tort theory, it nevertheless held that
respondents' claims also were barred by the discretionary function and
misrepresentation exceptions to the Federal Tort Claims Act, 28 U.S.C.
2680(a) and (h) (82-1349 Pet. App. 12a).

   c. The Court of Appeals' Decision.  The court of appeals reversed
(Pet. App. 1a-7a).  Employing reasoning akin to that adopted by the
same panel in its opinion issued the same day in the United Scottish
Insurance case, the court ruled that the United States could he held
liable under the good samaritan doctrine, as set forth in Sections 323
and 324A of the Restatement (Second) of Torts (1965) (see note 14,
supra).  In the court's view, the government had performed a "service"
to respondents within the meaning of the doctrine because "the United
States, through the F.A.A., has voluntarily undertaken the inspection
and certification of all civilian aircraft" (82-1349 Pet. App. 5a).
The court concluded in addition that the reliance element of the
doctrine had been satisfied because, having issued regulations
"designed to insure optimum safety," the government "should expect
that members of the public will rely on the proper performance by the
F.A.A. of its duty to inspect and certify" (ibid.).  The court made no
mention of the significance, if any, of the fact that all of the
passengers on the aircraft were foreign residents or that respondent
Varig had never attempted to obtain an export certificate of
airworthiness.

   The court of appeals ruled that the misrepresentation exception in
28 U.S.C. 2680(h) did not bar this action because "(respondents')
claims * * * arise from the negligence of the inspection rather than
from any ensuing misrepresentation contained in the resultant
certificate" (82-1349 Pet. App. 6a).  Finally, the court of appeals
rejected the discretionary function exception in 28 U.S.C. 2680(a) as
a bar to respondents' suit because "(t)he kind of discretion
contemplated by the exemption clause does not exist in certifying
compliance with F.A.A. safety regulations" (id. at 6a-7a).  /18/

                          SUMMARY OF ARGUMENT

                                  I.

   A. When Congress in 1946 took the "radical" step of waiving the
sovereign immunity of the United States for suits alleging negligence
by federal employees, it decided to proceed cautiously for fear of
causing an untoward disruption of the conduct of governmental affairs.
 Among the principal limitations placed on the waiver was that the
United States may be sued only in circumstances where a private person
could be held liable.  28 U.S.C. 1346(b) and 2674.  Congress intended
this limitation to exclude liability for the class of torts involving
a "governmental function," and this Court recognized this
congressional intent in cases decided shortly after the Federal Tort
Claims Act was enacted.  See Feres v. United States, 340 U.S. 135, 141
(1950);  Dalehite v. United States, 346 U.S. 15 (1953).

   Although the Court has held that the "private person" limitation is
satisfied by a variety of government operational activities (see,
e.g., Indian Towing Co. v. United States, 350 U.S. 61 (1955)
(operating a lighthouse);  Rayonier, Inc. v. United States, 352 U.S.
315 (1957) (fighting a forest fire)), those activities are
fundamentally different from the FAA's aircraft certification
function.  Certification of goods entering the channels of interstate
commerce, as a means of protecting the public health and safety, is
the essence of the government regulatory and law enforcement process.
Such activities have no counterpart in the private sector.  Thus, they
may not form the basis for tort liability under the Act.

   B. The court of appeals acknowledged that no private person assumes
responsibilities comparable to those of the FAA.  The court concluded,
however, that the United States could be held liable under the good
samaritan doctrine, as set forth in Sections 323 and 324A of the
Restatement (Second) of Torts (1965).  This tort theory has no
application to the regulatory functions of the FAA.

   First, the FAA did not undertake to perform a direct service for
respondents or any other specific individual.  The agency's mandate is
to promote the safety of the public as a whole by enforcing minimum
safety standards.  Second, any service performed by the FAA was not
necessary to protect respondents' safety.  Airline manufacturers and
operators have the primary responsibility for ensuring that their
equipment is in working order.  Finally, respondents did not and could
not reasonably rely to their detriment upon the FAA's certification.
It is not enough under the good samaritan doctrine that respondents
were aware generally that the FAA has regulatory duties involving
safety of aircraft;  they must have foregone alternatives to protect
themselves as a consequence of their awareness of the agency's
actions.  In sum, the relationship between respondents and the FAA is
too remote to create a duty of care under the good samaritan doctrine.

                                 II.

   Respondent's claims also are barred by the discretionary function
exception to the Federal Tort Claims Act, 28 U.S.C. 2680(a).  This
exception, like the private person limitation, is intended to insulate
the United States from "liability arising from acts of a government
nature or function," or involving judgmental decision-making.
Dalehite v. United States, 346 U.S. 15, 26 (1953).

   The court of appeals erred in concluding that the FAA's
certification process is merely a ministerial check of the aircraft to
ascertain compliance with inflexible safety standards.  To the
contrary, the agency's responsibilities in issuing a certificate are
permeated with discretionary determinations.  First, the FAA must
decide, in light of available resources and other considerations,
whether to examine a particular aircraft, or instead to rely on the
manufacturer's representation that it complies with the minimum safety
standards.  Second, in the event that the FAA actually examines an
aircraft, it must make complicated scientific and engineering
judgments whether the design or manufacture complies with numerous
standards that have been drafted to allow design flexibility.

   The fatal flaw in the court of appeals' analysis is the unwarranted
assumption that the FAA checks every aircraft for compliance with
every safety standard.  But resource and other limitations preclude
that regulatory approach, and the FAA's inspection manuals in fact
expressly grant discretion to spot check an airplane, or to rely on a
manufacturer's assurances and safety record.  In essence, respondents
contend that the FAA should have performed a more painstaking
inspection prior to issuing certificates to the specific aircraft
involved here.  This claim ultimately depends on the assertion that
the FAA abused its discretion to choose among reasonable regulatory
alternatives by not checking these particular airplanes more
thoroughly.

                                 III.

   Respondents' lawsuits arise out of the basic claim that they
purchased or traveled on defective aircraft in reliance upon a
certificate of airworthiness negligently issued by the FAA many years
earlier.  Such claims state the traditional and commonly understood
tort of negligent misrepresentation (see Restatement (First and
Second) of Torts Section 311 (1934 & 1965)) and accordingly may not be
maintained against the United States in light of the
"misrepresentation" exception to the Federal Tort Claims Act, 28
U.S.C. 2680(h).  The court of appeals concluded that respondents'
claims were based on the FAA's negligent inspection rather than
misrepresentation.  But, as the Court held in United States v.
Neustadt, 366 U.S. 696 (1961), a claim of negligent inspection is part
of the tort of negligent misrepresentation, when the injury flows from
the plaintiff's reliance on the erroneous communication that is the
product of the inspection.

   Block v. Neal, No. 81-1494 (Mar. 7, 1983), does not support the
decision below.  That case involved an alleged breach of duty by the
Farmers Home Administration to supervise construction of a home it
financed, because a negligent inspection failed to discover defects
that the agency might have corrected.  Here, by contrast, respondents
are far removed from the certification determination, because they
neither manufactured nor owned the aircraft at the time of the FAA's
inspection, and thus could rely, if at all, only on the FAA's issuance
of a certificate.

                               ARGUMENT

 I. THE FEDERAL AVIATION ADMINISTRATION'S FAILURE TO DISCOVER A SAFETY
DEFECT WHILE CARRYING OUT ITS REGULATORY DUTY OF CERTIFYING THE
AIRWORTHINESS OF AIRCRAFT IN COMMERCIAL AVIATION DOES NOT RENDER THE
UNITED STATES LIABLE FOR DAMAGES UNDER THE FEDERAL TORT CLAIMS ACT AS
"A PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES"

 A. The FAA's Inspection And Certification Process Is A Governmental
Function, Which Congress Did not Intend To Subject To Tort Liability

   1. The waiver of sovereign immunity in the Federal Tort Claims Act
is subject to a significant limitation:  the United States may be
found liable only in circumstances where liability would be imposed on
a private individual under state law.  See 28 U.S.C. 1346(b) and 2674.
 In this way, Congress intended to make the federal government
amenable to suit for "ordinary common-law torts" (Dalehite v. United
States, 346 U.S. 15, 28 (1953) (footnote omitted));  indeed, the
legislative history of the FTCA is devoted almost exclusively to
discussions regarding the need to supply a judicial remedy for
automobile accidents involving government employees who drive
negligently in the course of their employment.  /19/

   Despite the restricted scope of this waiver of sovereign immunity,
the FTCA was regarded as "a radical innovation," which prompted
Congress to proceed cautiously.  Tort Claims Against the United
States:  Hearings on H.R. 7236 Before Subcomm. No. 1 of the House
Comm. on the Judiciary, 76th Cong., 3d Sess. 22 (1940).  Accordingly,
Congress made plain its intention that the Act should not extend to
suits against the United States based on "that class of tort on the
part of the Government which has to do with a governmental function,
so to speak." 86 Cong. Rec. 12021 (1940) (remarks of Rep. Gwynne).

   This Court recognized the limited nature of Congress' waiver of
sovereign immunity in the earliest decisions interpreting the Tort
Claims Act.  In Feres v. United States, 340 U.S. 135, 141 (1950), the
Court held that the Act does not waive sovereign immunity in
situations where there is no liability for private individuals "even
remotely analogous to that which (plaintiffs) are asserting against
the United States." /20/ The Court reemphasized the point three years
later in Dalehite v. United States, supra, 346 U.S. at 32, when it
explained that "Congress exercised care to protect the Government from
claims, however negligently caused, that affected governmental
functions." Thus, this Court has acknowledged that Congress, by
providing the "private person" limitation as a condition to recovery,
intended not only to adopt state law as the rule of decision for
imposing tort liability (see Indian Towing Co. v. United States, 350
U.S. 61 (1955)), but also to preserve inviolate from tort suits a core
of governmental activities that are never engaged in by private
citizens.  /21/

   To be sure, this Court has declined on occasion to apply the
private person limitation so as to insulate certain governmental
activities from suit.  In Indian Towing Co. v. United States, supra,
the Court held that the Coast Guard's negligent operation of a
lighthouse that caused a boat to run aground was not exempt from
liability as a uniquely governmental activity.  In addition, the Court
rejected similar claims with regard to Forest Service fire-fighting
activities (Rayonier, Inc. v. United States, 352 U.S. 315 (1957)) and
the Bureau of Prison's efforts to care for inmates at a federal
correctional facility (United States v. Muniz, 374 U.S. 150 (1963).
Critical to each of those cases, however, was the fact that the
government agency involved had assumed direct, operational
responsibility for the activity that caused the injury.  The analogy
between claims based on these kinds of operational activities and
those that Congress had uppermost in its mind in adopting the Tort
Claims Act -- suits alleging negligence by government employees in
operating a motor vehicle -- is quite close.  Indeed, the Court in
Indian Towing, in discussing a hypothetical case, expressly compared
negligent operation of an automobile to the negligent operation of a
lighthouse and concluded that there was no "rational ground * * * why
there should be any difference in result()." 350 U.S. at 66.

   But there is an obvious and fundamental difference between driving
a car and the government's quintessentially sovereign function of
inspecting an aircraft for the purpose of certifying whether it may
lawfully use the nation's airspace.  Regulatory conduct such as that
performed by the FAA is engaged in solely by the government;  thus, if
the immunity for governmental functions, which Congress expressly
intended to preserve, is to have any meaning, it must be applicable
where, as here, the government performs its unique law enforcement
role over private industry.  /22/

   The actions of a government agency in enforcing health and safety
legislation pursuant to a program of inspection and certification have
no counterpart in the private sector.  Unlike private testing
laboratories, which certify the quality of a product at the request
and for the benefit of a particular customer, /23/ the government
inspects and certifies for the purpose of protecting the general
public, by eliminating defective or dangerous instrumentalities from
the channels of interstate commerce.  As we have explained, the FAA is
required "to promote safety of flight of civil aircraft in air
commerce" (49 U.S.C. 1421(a)), and, in prescribing standards, rules
and regulations, and in issuing certificates, the FAA must "give full
consideration to the duty resting upon air carriers to perform their
services with the highest possible degree of safety in the public
interest" (49 U.S.C. 1421(b);  emphasis added).  By the same token,
the FAA may grant exemptions from applicable rules and regulations if
it "finds that such action would be in the public interest" (49 U.S.C.
1421(c);  emphasis added).  When the FAA breaches these obligations by
issuing an unwarranted certificate, it has breached its governmental
responsibilities to the general public, not any duty of care to an
individual.  The remedy for such breach is corrective administrative
action or modification of the agency's duties by Congress, not
judicial review through tort litigation brought by private plaintiffs.

   It is simply inconceivable that Congress, when it enacted the Tort
Claims Act with an intention to protect from suit certain core
governmental, regulatory activities and to move cautiously because of
the radical nature of the Tort Claims Act concept (see page 22,
supra), meant to waive sovereign immunity for claims based on
administrative inspection and certification activities.  /24/
Inspection and certification are the lifeblood of the administrative
process;  "(l) icensing is (a) widely used regulatory technique that
is characteristically employed * * * to enforce minimal qualification
* * * ." S. Breyer & R. Stewart, Administrative Law and Regulatory
Policy 4 (1979).  Numerous agencies of the federal government have
inspection and/or certification authority and virtually every business
that engages in interstate commerce is subject to some form of
federally-administered certification or licensing requirement.  To
name just a few, the Nuclear Regulatory Commission inspects nuclear
reactors, /25/ the Food and Drug Administration inspects and certifies
the safety of drugs and food, /26/ the Federal Deposit Insurance
Corporation inspects the financial records of federally-insured banks,
/27/ the Occupational Safety and Health Administration inspects the
safety and health conditions of most work environments, /28/ and the
Mine Safety and Health Administration inspects the safety and health
conditions of mines.  /29/

   The potential liability of the United States for failure to uncover
defects or improprieties pursuant to these and other regulatory
inspections is staggering.  In the case of aircraft certifications
alone, the United States would be amenable to suit whenever an
accident caused by mechanical failure occurred anywhere in the world,
if the airplane involved had at any time been inspected by the FAA.
/30/ And this liability could be imposed without the slightest
evidence that the United States acted unreasonably in conducting its
inspection.  Negligence in United Scottish Insurance was based solely
on res ipsa loquitur, and negligence in Varig Airlines and Mascher
would necessarily be based on the same theory.  Proof of actual fault
cannot be established.  While reliance on res ipsa loquitur in a
particular FTCA case is certainly permissible, it is most unlikely
that Congress intended to waive sovereign immunity in a broad class of
cases where virtually no specific proof of negligence or wrongful
conduct by a federal employee will ever be available.  Cf. Laird v.
Nelms, 406 U.S. 797 (1972) (no recovery for strict liability under
FTCA);  Dalehite v. United States, supra, 346 U.S. at 44 (same).

   We submit that Congress, by limiting the government's liability to
that of a private person, did not intend to expose the United States
to monetary liability, essentially as an insurer, as a result of
certifications and inspections undertaken by administrative agencies
to enforce compliance by private industry with mandatory health and
safety requirements.  To the contrary, this is precisely the sort of
core governmental activity -- law enforcement -- that has no analogy
in private tort litigation and that therefore was excluded from the
limited waiver of sovereign immunity in the FTCA.

 B. The State Law Duty Embodied in the Good Samaritan Doctrine Cannot
Be Applied to the FAA's Inspection and Certification Process

   Notwithstanding the uniquely governmental nature of the FAA's
inspection and certification process, the court of appeals concluded
that the United States' liability "as a private person" under the Tort
Claims Act could be predicated on the good samaritan doctrine of tort
law, adopted by California as set out in Sections 323 and 324A of the
Restatement (Second) of Torts (1965) (see note 14, supra).  The court
of appeals' Procrustean effort to fit the FAA's certification process
into the framework of the good samaritan doctrine, however, merely
reinforces our submission that this law enforcement function is simply
not a suitable basis for imposing tort liability.

    1. The FAA Did Not Perform A Necessary Service For Respondents

   In order to recover under Sections 323 and 324A of the Restatement,
the plaintiff must first demonstrate that the defendant undertook to
render a service to another, which was necessary for the other's
protection.  The court of appeals' conclusion (82-1350 Pet. App. 3a)
that "(w)hen voluntarily performing activities solely for the safety
of the public, the F.A.A. performs a service for others" fails to
recognize the crucial distinction between the FAA's conduct and that
of the traditional good samaritan recognized by state tort law.  To
satisfy the good samaritan doctrine, it must be shown that "the
purpose of the action was to render a direct service to the person who
was harmed, or to persons of that class." Roberson v. United States,
382 F.2d 714, 720 (9th Cir. 1967) (emphasis added).  See also Patentas
v. United States, 687 F.2d 707, 716 (3d Cir. 1982);  Evans v. Liberty
Mutual Insurance Co., 398 F.2d 665, 666-667 (3d Cir. 1968).  For
instance, the doctrine applies where an employer undertakes to
transport an ill employee to her home and does so negligently.  See
Restatement (Second) of Torts Section 323 comment c, illustration 1.
Other common examples are (382 F.2d at 720):

      an employer gratuitously furnished medical aid to an employee,
      and was negligent in selecting a physician, Vesel v. Jardine
      Mining Co., 110 Mont. 82, 100 P.2d 75, 127 A.L.R. 1093;  a water
      company gratuitously removed a meter and left the plaintiff's
      premises in a dangerous condition, Walsh v. Hackensack Water
      Co., 181 A 422, 13 N.J. Misc. 815;  a landlord gratuitously
      undertook to repair a water pipe and did so in a negligent
      manner. Tarnogurski v. Rzepski, 252 Pa. 507, 97 A 697.

   The activities performed by the FAA are far removed from these
examples or from other situations contemplated by the good samaritan
doctrine.  As one court has accurately explained (Grogan v.
Commonwealth of Kentucky, 577 S.W.2d 4, 5 (Ky. 1979) (citation
omitted):

      (I)n the enactment of laws designed for the public safety a
      governmental unit does not undertake to perform the task;  it
      attempts only to compel others to do it, and as one of the means
      of enforcing that purpose it may direct its officers and
      employees to perform an inspection function.  The failure of its
      officers and employees to perform that function does not
      constitute a tort committed against an individual who may
      incidentally suffer injury or damage, in common with others by
      reason of such default.

   The FAA's mandate is to promote the safety of the public as a whole
by enforcing minimum safety standards.  Congress made it unlawful "(f)
or any person to operate in air commerce any civil aircraft for which
there is not currently in effect an airworthiness certificate" (49
U.S.C. 1430(a)(1)) and authorized the FAA to adopt an inspection and
certification process as integral steps in a program of law
enforcement (see pages 4-9, supra).  The FAA's function is designed to
encourage private entities to comply voluntarily with minimum safety
standards, and, if possible, to prohibit those who fail to comply from
using our airspace.  Manufacturers and operators of commercial
aircraft are regulated by the FAA;  the FAA does not perform an
inspection service for their benefit, any more than the Internal
Revenue Service performs an audit for the benefit of a taxpayer.  By
the same token, the general flying public undoubtedly is an incidental
beneficiary of the FAA's enforcement activities, just as the general
public is a beneficiary of all governmental regulatory activities;
but the FAA does not purport to act as a private testing service for
each passenger.

   The inapplicability of the good samaritan tort doctrine to the
FAA's certification process is perhaps best demonstrated by comparing
the instant cases to the California cases relied upon by the district
court in United Scottish Insurance.  In Coffee v. McDonnel-Douglas
Corp., 8 Cal. 3d 551, 125 Cal. Rptr. 358, 503 P.2d 1366 (1972), the
court held that an employer was liable for injuries caused by its
failure to inform plaintiff that a blood test the employer had
voluntarily administered to plaintiff indicated the presence of a
potentially serious illness.  The court did not hold that the employer
was under a duty to discover the disease, but only that given its
relationship to the employee, the employer had a duty to disclose any
"dangerous condition revealed in a physical examination." 8 Cal. 3d at
559.

   The other two cases are even more distantly related.  Schwartz v.
Holmes Bakery Limited, 67 Cal.2d 232, 60 Cal. Rptr. 510, 430 P.2d 68
(1967), involved a claim for personal injury caused by a bakery truck
driver who negligently instructed a 14-year-old customer on how to
approach the truck.  And, in Brochett v. Kitchen Boyd Motor Co., 264
Cal. App. 2d 69, 70 Cal. Rptr. 136 (1968), an employer was held liable
for allowing a minor employee to become intoxicated and then to drive
home alone.

   All of those cases are obviously distinguishable from the instant
cases in several significant respects.  To begin with, there is a
major difference in the directness of the relationship between the
parties, which necessarily affects the duty of the defendant.  See W.
Prosser, Handbook of the Law of Torts 324 (4th ed. 1971) (duty depends
on "the relationship between individuals which imposes on one a legal
obligation for the benefit of the other").  In United Scottish
Insurance, the FAA certified Aerodyne's installation of a heater in an
airplane owned by Air Wisconsin.  Years later, Air Wisconsin conveyed
the airplane to Catalina-Vegas;  the subsequent airplane accident
caused property damage to respondent Dowdle, who owned Catalina-Vegas,
and personal injury to the passengers.  The relationship between the
FAA and the injured parties in Varig Airlines and Mascher is even more
remote.  The FAA issued an airworthiness certificate to Boeing, which
sold the airplane to Seaboard, which sold the plane to Varig;  the
airplane accident occurred 15 years after the allegedly negligent
action and caused property damage to Varig and personal injury to its
passengers.

   Respondents have cited no case in which a private person has been
held liable for gratuitous conduct that caused injuries so far removed
from the alleged negligent act.  In the California cases, the duties
were created because of the direct, personal services that were
provided and relationships that existed between the parties --
employers and employees, merchants and customers, responsible adults
and dependent minors;  more important, in each of these cases the
defendant acted negligently in his dealings with the plaintiff.  By
contrast, the FAA has no comparable relationship with respondents, and
respondents had absolutely no interest in the airplanes at the time of
the allegedly negligent inspections.  See also page 38, infra.  /31/

   Moreover, it is plain that the FAA's inspections were not
"necessary" to protect anyone.  In the foregoing examples from
California law, once the defendant chose to perform a service for the
plaintiff, the defendant's due care was essential to protect the
plaintiff from harm.  Under the Federal Aviation Act, however, the
manufacturer and operator of an aircraft retain the primary
responsibility (49 U.S.C. 1425(a)) to insure compliance with FAA
standards, regardless of the nature or extent of an FAA inspection,
and this includes an express duty to inspect their own equipment.  An
accident caused by the breach of those duties gives rise to liability.
 See notes 11, 16, supra.  The FAA, on the other hand, merely
possesses the governmental authority to check on the manufacturer's
and operator's work;  it does not attempt to review every detail in
the applicant's submission.  Indeed, as noted above (see pages 7, 9,
supra), the FAA's internal operating rules expressly permit the agency
to issue a certificate without examining all aspects of a design or
modification that are submitted for approval.

 2. Respondents Did Not And Could Not Reasonably Rely on the FAA's
Inspections and Certifications in these Cases

   To recover under the good samaritan doctrine, it is not sufficient
to show that the good samaritan negligently performed a necessary
service.  The plaintiff must also prove that the effect of any
negligent conduct was either to increase the risk of harm or to cause
injury because of another person's justifiable reliance on the
undertaking.  /32/ The first alternative is plainly inapplicable to
this situation, because the government's issuance of a certificate
cannot possibly increase the risk of harm created by the
manufacturer's or operator's negligence.  See, e.g., 82-1350 Pet. App.
14a;  Zabala Clemente v. United States, 567 F.2d 1140, 1145 (1st
Cir.), cert. denied, 435 U.S. 1006 (1978);  Gelley v. Astra
Pharmaceutical Products, Inc., 610 F.2d 558, 562 (8th Cir. 1979).

   The court of appeals concluded, however, that liability was
appropriate because "(t)he United States should expect that members of
the public will rely on the proper performance by the F.A.A. of the
duty to inspect and certify" (82-1349 Pet. App. 5a).  We question
whether this unsubstantiated assertion is accurate with respect to
large segments of the American public.  But the assertion is surely
preposterous with respect to the passengers in Mascher, who were
Brazilian residents flying from Rio de Janeiro to Paris in an airplane
owned and operated by a Brazilian airline.  Apparently, according to
the court of appeals, the United States should expect that members of
the Brazilian public (and, presumably, citizens of other countries as
well) are aware of and will rely on the FAA's certification
procedures.

   In any event, general reliance of the sort described by the court
of appeals is not sufficient to impose liability on the government as
a good samaritan.  As the Eighth Circuit recognized in an analogous
context, "'reliance on the inspection in general is not sufficient * *
* to impose a duty of care * * * .  Instead, the reasonable reliance
must be based on specific actions or representations which cause the
persons to forego other alternatives of protecting themselves.'"
Gelley v. Astra Pharmaceutical Products, Inc., supra, 610 F.2d at 561,
quoting Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-807
(Minn. 1979).  /33/ Similarly, in Zabala Clemente v. United States,
supra, 567 F.2d at 1148, the First Circuit held that the FAA's failure
to comply with a local directive to warn passengers of "any safety
problems" created no liability because passengers did not know about
the specific duties the FAA imposed on its employees and thus could
not have relied to their detriment on the FAA.  See also Sellfors v.
United States, 697 F.2d 1362, 1365 (11th Cir. 1983), petition for
cert. pending, No. 82-1178 (filed May 2, 1983);  Patentas v. United
States, 687 F.2d 707, 717 (3d Cir. 1982);  Davis v. United States, 536
F.2d 758 (8th Cir. 1976), aff'g 395 F.Supp. 793 (D. Neb. 1975);  Davis
v. Liberty Mutual Insurance Co., 525 F.2d 1204, 1208 (5th Cir. 1976).

   The court of appeals thus erred in holding that tort liability
could be predicated on an alleged knowledge commonly held by
passengers that the FAA inspects and certifies aircraft.  Applying the
proper standard of reliance, it is plain that the passengers in United
Scottish Insurance could not have relied within the meaning of Section
324A;  they were wholly unaware that the FAA issues supplemental type
certificates, and, even if they had known, nothing in the record
indicates that anyone decided to forego alternative protections
because of the FAA's certification process.  Even less of a claim can
be made that the Brazilian passengers in Mascher relied on the CAA's
issuance of a type certificate to Boeing in 1958, 15 years before they
decided to board their flight to Paris.  /34/

   Respondents Dowdle and Varig Airlines claim that they knew that the
FAA had issued a certificate of airworthiness and they relied upon
that document in deciding to purchase their planes.  /35/ Aside from
the obvious point that these claims sound precisely like claims of
misrepresentation (see pages 46-50, infra), it is clear that
respondents' reliance on the FAA was wholly unjustified.  Given the
nature of the FAA's certification program, it is unreasonable for
anyone to rely upon the agency's law enforcement activities to
guarantee an aircraft's safety.  In finding reliance, the court of
appeals in United Scottish Insurance emphasized that Congress
"occup(ied) the field of" commercial aviation safety in 1926 (82-1350
Pet. App. 4a).  But Congress by this action merely assumed for the
federal government regulatory responsibilities previously exercised by
the states;  it never intended to preempt the safety responsibilities
of the airline industry.  Congress instead directed the FAA to enforce
the obligations of those who do have the duty to guarantee safety --
aircraft operators and manufacturers.  See Raymer v. United States,
660 F.2d 1136 (6th Cir. 1981), cert. denied, 456 U.S. 944 (1982).
Consistent with this direction, the agency has never undertaken to
check -- or held itself out as checking -- every detail of every
aircraft.  See pages 7-9, supra;  pages 43-46, infra.  In all phases
of the certification process, the agency relies on the industry, not
vice versa;  given the FAA's resources, it could not possibly
investigate every potential safety defect.

   Thus, it would be unreasonable for the purchaser of an airplane to
rely upon the FAA's certification papers as a guarantee of safety or
to forego other efforts to check the airworthiness of such a
substantial investment.  It is conceivable that no FAA employee ever
inspected the aircraft in question, and even if there had been an FAA
inspection, /36/ more likely than not it would have been a mere spot
check in the case of a reputable manufacturer or installer (Handbook,
supra, at 39).  Indeed, even after years of discovery in these cases
there is nothing in the records indicating precisely what type of
inspection of the airplanes was conducted or by whom.  Under these
circumstances, purchasers of aircraft must rely on the assurances of
manufacturers and installers -- here, Boeing and Aerodyne -- rather
than the FAA.

 3. The Relationship Between the FAA and Respondents is Too Remote to
Create A Duty of Care

   The foregoing examination of the specific elements of the good
samaritan doctrine reveals that the FAA's certification process is
fundamentally different from the kinds of operational activities that
the doctrine was designed to address.  Accordingly, neither the good
samaritan duty nor any other duty of care can be extended to the
agency's action that would run to respondents.

   The key to the existence of a duty "always is whether the putative
wrongdoer has advanced to such a point as to have launched a force or
instrument of harm, or has stopped where inaction is at most a refusal
to become an isntrument for good." H.R. Moch Co. v. Rensselaer Water
Co., 247 N.Y. 160, 167, 159 N.E.2d 896, 898 (1928) (Cardozo, J.).  The
FAA's certification process is designed to be an "instrument for
good";  it does not create any new danger, and it does not engender
any reliance beyond that created by the manufacturer's and operator's
duty to build and maintain an aircraft that complies with minimum
safety standards.  Respondents argue, as did the plaintiffs in H. R.
Moch, that by retaining the option to inspect for defects, the FAA
"was brought into such a relation with everyone who might potentially"
use the airplane "as to give to negligent performance * * * the
quality of a tort." Ibid.  Justice Cardozo's answer applies equally
here:  "The law does not spread its protection so far." Ibid., quoting
Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927) (Holmes,
J.).  Since respondents have failed to show that the United States
would be liable as a private person under the good samaritan doctrine,
recovery is barred under 28 U.S.C. 1346(b) and 2674.

 II. THE DISCRETIONARY FUNCTION EXCEPTION TO THE FEDERAL TORT CLAIMS
ACT BARS LIABILITY BASED ON THE ALLEGED NEGLIGENCE OF THE FAA IN
CARRYING OUT ITS REGULATORY DUTY OF ISSUING AIRWORTHINESS CERTIFICATES

 A. The Discretionary Function Exception Is Intended To Shield
Regulatory Activities Such As Those Undertaken By The FAA From Private
Tort Litigation

   The Tort Claims Act precludes recovery for claims "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." 28 U.S.C. 2680(a).  This provision, like the private person
limitation in 28 U.S.C. 1346(b) and 2674, is intended to insulate the
United States from "liability arising from acts of a governmental
nature or function," where the agency's exercise of judgment should
not be subject to judicial oversight.  Dalehite v. United States, 346
U.S. 15, 28 (1953).  The FAA regulatory decision-making challenged by
respondents falls squarely within this exception.

   As the Court noted in Dalehite v. United States, supra, 346 U.S. at
26, "(t)he meaning of the governmental regulatory function exception
from suits * * * shows most clearly in the history of the Tort Claims
Bill in the Seventy-seventh Congress." The FTCA was the product of
more than two dozen different bills introduced since 1923.  See United
States v. Spelar, 338 U.S. 217, 219-220 (1949).  Many of the earlier
bills contained specific exceptions from liability that "were couched
in terms of specific spheres of federal activity, such as postal
service, the activities of the Securities and Exchange Commission, or
the collection of taxes." Dalehite v. United States, supra, 346 U.S.
at 26 (footnote omitted).  See, e.g., Section 303(7) of S. 2690, 76th
Cong., 1st Sess. (1939) and Section 303(7) of H.R. 5299, 77th Cong.,
1st Sess. (1941), exempting claims arising from enforcement activities
of the Federal Trade Commission and the Securities and Exchange
Commission.  The 77th Congress removed the exemptions granted to
specific agencies and expanded the exception to include all
discretionary functions.  Congress made the change with the declared
intent to bar "claims against Federal agencies growing out of their
regulatory activities." House Comm. on the Judiciary, 77th Cong., 2d
Sess., Federal Tort Claims Act, Memorandum, With Appendices,
Explanatory of Comm. Print of H.R. 5373, at 8 (Comm. Print 1942).  The
efforts of the FAA to detect violations of its minimum safety
standards are as much a discretionary regulatory activity as attempts
by the FTC or SEC to ferret out infractions of their statutes and
rules.

   The only decision of this Court expressly interpreting Section
2680(a) is Dalehite v. United States, supra.  There the Court held
that the discretionary function exception barred a series of suits
against the United States resulting from the disastrous explosion of
ammonium nitrate fertilizer, which had been produced and distributed
according to the specifications and under the control of the United
States.  The Court concluded that the discretionary function exception
prohibited claims based on (1) the cabinet-level decision to institute
the fertilizer program;  (2) the need for further experimentation with
the fertilizer to determine the possibility of explosion;  (3) the
drafting of the basic plan of manufacture, including the decisions
regarding the coating, bagging temperature and bagging materials, and
(4) the failure to police properly the storage and loading of the
fertilizer.  346 U.S. at 37-44.  Although the Court found it
"unnecessary to define, apart from this case, precisely where
discretion ends," it nevertheless stated that the exception "includes
more than the initiation of programs and activities." Id. at 35.
Rather, "(w)here there is room for policy judgment and decision there
is discretion.  It necessarily follows that acts of subordinates in
carrying out the operations of government in accordance with official
directions cannot be actionable." Id. at 36.

   The court of appeals mistakenly ruled that the discretionary
function exception does not apply to the FAA's certification
activities because it concluded that, in light of the agency's
detailed regulations, "no room for policy judgment or decision exists
* * * " (82-1350 Pet. App. 5a).  In the court of appeals' view, "(a)
proper inspection will discover facts.  The facts will show either
compliance or noncompliance" with the FAA's safety standards (82-1349
Pet. App. 7a).  These assertions reflect an unduly narrow view of what
constitutes a discretionary function and grossly oversimplify and
mischaracterize the FAA's role both in enforcing minimum safety
standards and in deciding whether to issue an airworthiness
certificate to an applicant.  /37/

   The FAA's certification process has both an active and a passive
quality.  The agency does review certification applications and
decides in the exercise of its best scientific and engineering
judgment whether aspects of a proposed design satisfy the minimum
safety standards and thus will be airworthy.  The agency, however,
also declines to review some details in every application because of
resource limitations and other considerations.  Even if it were
possible in theory to check every facet of every aircraft before
issuing the various certificates, the undertaking would require an
enormous increase in agency personnel and a major restructuring of
operating procedures.  The court of appeals' syllogism of inspection
leading to factual determinations leading to a virtually ministerial
determination of compliance is therefore a distortion of the actual
process.  What the court's superficial analysis ignores is the
significant amount of discretion that the agency necessarily exercises
in making the public interest determination of whether to issue a
requested certificate.  Section 2680(a) was intended to shield that
discretion from judicial second-guessing in the form of tort
litigation.

 B. The FAA's Certification Process Is Permeated with Discretionary
Conduct of the Sort Typically Protected By Section 2680(a)

 1. The Decision To Approve An Aircraft's Design Requires Scientific
and Engineering Judgment

   The FAA's determination that a particular aircraft design or
modification satisfies its regulatory standards is closely analogous
to agency action that the lower courts have held to be barred from
suit under the FTCA.  In First National Bank in Albuquerque v. United
States, 552 F.2d 370 (10th Cir.), cert. denied, 434 U.S. 835 (1977),
for example, the court of appeals held that claims based on alleged
negligence by Department of Agriculture employees in approving, under
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (&
Supp. V) 135 et seq., the labeling of grain treated with a poisonous
substance was barred by the discretionary function exception because
the government had to make a scientific assessment of what the public
safety requires in evaluationg the adequacy of the labeling.  See also
Gelley v. Astra Pharmaceutical Products, Inc., supra, (discretionary
function exception bars a claim based on the Food and Drug
Administration's scientific determination to allow a drug to remain in
interstate commerce in misbranded or adulterated condition).

   Similarly, the judgments involved in these cases cannot be
characterized as the ministerial application of a clear standard to a
particular fact situation.  FAA employees must make difficult
scientific and engineering judgments in deciding whether to approve a
particular design or change in a design.  /38/ The determination in
United Scottish Insurance whether a gasoline line in a heater has
"excessive vibration" on the one hand (14 C.F.R. 23.993(a)) or
sufficient flexibility to withstand stress on the other requires a
difficult, and essentially subjective, engineering assessment.  By the
same token, the determination in Varig Airlines and Mascher whether
waste receptacles adequately provide for "containing possible fires"
(see note 16, supra) calls for an inherently subjective and predictive
judgment.  /39/

 2. The FAA Has Discretion To Approve Aircraft As Airworthy Without
Checking Every Detail to Assure Compliance With Minimum Standards

   Even if the court of appeals were correct in concluding that the
FAA's decision to approve a particular design that it has inspected is
not discretionary, its analysis fails to take account of the agency's
discretion to issue a certificate without verifying that there has
been compliance with every minimum safety standard.  The court of
appeals inferred from the detail of the FAA's safety standards that
the agency had fully exercised its administrative discretion in favor
of exhaustive inspections designed to guarantee the airworthiness of
an approved aircraft.  But the purpose of the detailed standards is to
guide manufacturers in designing and building minimally safe aircraft;
 the standards do not lessen the FAA's inherent discretion to decide
how to allocate its resources in attempting to administer its statute.
 Indeed, if anything, the very quantity and detail of the regulations
emphasize that the FAA must retain flexibility to rely upon private
industry to protect aircraft safety.

      Within the regulatory concept of the certification process there
      may be endless opportunity for the discovery of error.  Yet
      inherent in the FAA's regulatory auditing process, which
      contemplates a review of tests reasonably necessary to
      demonstrate compliance with minimum standards, lies the reality
      that not all errors and defects can be discovered.

   Harrison and Kolczynski, Government Liability for Certification of
Aircraft?, 44 J. of Air L. & Com. 23, 43 (1978).  The FAA, with a few
hundred inspectors, simply cannot ensure that each of its regulations
has been satisfied before issuing a type certificate, supplemental
type certificate, or airworthiness certificate -- any more, for
example, than a municipal inspection station can ensure that every
automobile is safe before issuing a yearly registration sticker.  Some
judgment must be made concerning how best to use the finite resources
available to maximize compliance with the statute;  this judgment
involves a determination of both whether any inspection is necessary,
and, if so, how extensive that inspection should be.  /40/

   The court of appeals appeared to assume that the FAA purports to
check compliance with every safety standard for every certified
aircraft.  But the FAA Handbook clearly indicates that inspectors are
free to decide whether and how thoroughly to review the manufacturers'
efforts in any given situation (Handbook, supra, at 39;  pages 7-9,
surpa).  The provision describing inspections for supplemental type
certifications, for example, authorizes the inspector to rely upon
spot checks of manufacturers who have proven reliability (see pages
7-8, supra).  Even more discretion to defer to the manufacturer's
engineers is granted in the design review process leading to type
certification.  See NAS Report, supra, at 29;  see note 9, supra.

   This discretion is critical to the FAA's effort to impose its
standards on an entire industry.  Like many federal agencies, the FAA
polices the industry it regulates.  The FAA possesses authority to
seek civil penalties for violations of the certification requirements,
49 U.S.C. (& Supp. V) 1471, and may even pursue criminal penalties if
the violation is knowing and willful.  49 U.S.C. (& Supp. V) 1472.
The more common sanction is to strip the manufacturer or operator of
its certification, thereby effectively grounding the aircraft.  49
U.S.C. 1425.  The inspection process is the central means by which the
FAA discovers violations and thereby enforces its laws, and it is thus
crucial that the FAA be permitted to decide for itself which aircraft
to inspect and how extensive that inspection should be.  /41/ Courts
have no competence to oversee these law enforcement determinations.

   In some instances, the FAA may determine that a complete
examination is in order;  in other cases, it may decide that only a
spot check is warranted;  on yet other occasions, the agency may
conclude that (given the manufacturer or installer's track record and
representations) no further inspection need be made.  Whichever choice
is made, a certificate eventually will issue, although it is generally
impossible long after the fact to reconstruct the type of inspection
performed.  In essence, respondents claim that the FAA should have
undertaken a more painstaking inspection prior to issuing
airworthiness certificates to the specific aircraft involved here.
But the decision whether to do so, or instead to choose one of the
other reasonable regulatory alternatives, is protected by the
discretionary function exception.  See Garbarino v. United States,
supra, 666 F.2d at 1065-1066.

   In sum, the court below utterly disregarded the FAA's regulatory
role and adopted a rule that would require the FAA to change
dramatically its regulatory function from that of a policeman to that
of a mechanic or repairman (see note 22, supra), with a corresponding
need to reallocate its resources.  Congress adopted the discretionary
function exception precisely to prohibit such judicial restructuring
of an agency's assigned responsibilities.

 III. THE MISREPRESENTATION EXCEPTION TO THE FEDERAL TORT CLAIMS ACT
BARS RESPONDENTS' CLAIMS BASED SOLELY ON THEIR RELIANCE ON THE FAA'S
INSPECTION AND CERTIFICATION ACTIVITIES

   When Congress in 1946 waived the sovereign immunity of the United
States for many common law torts, it recognized that there were "a
series of torts as to which, for the time being at least, it may be
dangerous for the government to subject itself to suit * * * ." Tort
Claims Against the United States:  Hearings on S. 2690 Before a
Subcomm. of the Senate Comm. on the Judiciary, 76th Cong., 3d Sess. 13
(1940).  See also id. at 22;  S. Rep. No. 1400, 79th Cong., 2d Sess.
33 (1946);  H.R. Rep. No. 1287, 79th Cong., 1st Sess. 6 (1945).
Accordingly, Congress expressly exempted from the Tort Claims Act "(a)
ny claim arising out of," inter alia, "misrepresentation." 28 U.S.C.
2680(h).  If, contrary to our submissions in parts I and II,
respondents have stated a claim that satisfies the "private person"
requirement in Sections 1346(b) and 2674 and is not barred by the
discretionary function exception in Section 2680(a), respondents'
claims arise out of the tort of misrepresentation, and thus recovery
against the United States is precluded.

   All of respondents' claims ultimately derive from an alleged
reliance by respondents Dowdle and Varig, in purchasing the airplanes
that crashed, upon the FAA's issuance of a certificate which
represented that the airplanes were airworthy when in fact they may
not have been.  Such claims constitute what is commonly understood as
the tort of misrepresentation.

   Section 311 of the Restatement (Second) of Torts (1965) defines the
tort of negligent misrepresentation involving risk of physical harm as
follows:

         (1) One who negligently gives false information to another is
      subject to liability for physical harm caused by action taken by
      the other in reasonable reliance upon such information, where
      such harm results

         (a) to the other;  or

         (b) to such third persons as the actor should expect to be
      put in peril by the action taken.

         (2) Such negligence may consist of failure to exercise
      reasonable care

         (a) in ascertaining the accuracy of the information, or

         (b) in the manner in which it is communicated.

   Illustration 8 of Section 311 is directly analogous to the facts of
this case.  That illustration states:

         The A Boiler Insurance Company undertakes as a part of its
      services to inspect the boiler of B.  It issues a certificate
      that the boiler is in good condition for use.  In reliance upon
      this certificate, B uses the boiler.  The boiler bursts, owing
      to a defect which a reasonably careful inspection would have
      disclosed.  Explosion of the boiler wrecks the adjacent building
      of C and causes bodily harm to him.  The A company is subject to
      liability to C for his bodily harm and the wrecking of his
      building caused by the explosion of the boiler.  /42/

   See Reynolds v. United States, 643 F.2d 707 (10th Cir.), cert.
denied, 454 U.S. 817 (1981);  Anglo-American & Overseas Corp. v.
United States, 144 F.Supp 635, 636 (S.D.N.Y. 1956), aff'd, 242 F.2d
236 (2d Cir. 1957).  /43/

   Just as in the boiler illustration, respondents allegedly relied
here on the certificate issued by an inspector.  In United Scottish
Insurance, respondents' evidence was that they relied on the
communication in the FAA's certificates regarding the heater's
installation and the plane's airworthiness.  The mechanic sent by
respondent Dowdle, the purchaser of the plane, to inspect the
DeHavilland Dove prior to the sale testified that he relied on the
FAA's airworthiness certificate as establishing that the heater had
been properly installed (J.A. 229) and that he usually did not go
behind this "paperwork" to check an airplane himself (ibid.).  In
other words, respondents relied on the allegedly incorrect
communication from the FAA, which is the essence of the tort of
misrepresentation.  Similarly, the claims in the Varig Airlines and
Mascher cases -- that the Brazilian airline relied to its detriment on
the allegedly false statement in the FAA certificate issued to Boeing
that the plane was airworthy -- plainly arise out of
misrepresentation.

   The court of appeals ruled, however, that respondents' claims were
based on the "negligent inspection" and, hence, were not precluded by
Section 2680(h).  The reasoning of the court of appeals is flatly
inconsistent with this Court's decision in United States v. Neustadt,
366 U.S. 696 (1961).  In Neustadt, the Court held that a claim that
the Federal Housing Administration had negligently inspected a house
and had misled plaintiffs into purchasing the house because of a false
"Statement of FHA Appraisal" was merely "to state the traditional and
commonly understood legal definition of the tort of 'negligent
misrepresentation'" for which recovery against the United States was
barred.  366 U.S. at 706.

   As in Neustadt, the instant cases involve a situation in which a
government employee allegedly was negligent in inspecting and
certifying in a written report that the object inspected was in good
condition.  Here again, as in Neustadt, respondents claimed that they
were injured as a result of their reliance on the false information
conveyed to them by the report issued by the government.  There is
simply no way to avoid characterizing respondents' claims as ones of
negligent misrepresentation.

   This Court's decision in Block v. Neal, No. 81-1494 (Mar. 7, 1983),
is not to the contrary.  In Neal, the Court held that Section 2680(h)
did not require dismissal of a complaint alleging that the Farmers
Home Administration had breached a duty to inspect and supervise the
construction of plaintiff's home.  The Court described the gist of the
plaintiff's claim as follows:  "FmHA officials voluntarily undertook
to supervise construction of her house, (and) * * * the officials
failed to use due care in carrying out their supervisory activity * *
* ." Slip op. 8 (emphasis added).  The Court reasoned that since the
plaintiff had alleged that the inspection in Neal gave rise to a duty
on the FmHA inspector to do more than simply communicate the results
of the inspection, plaintiff's claims based on the duty to supervise
were not barred by the misrepresentation exception.  The Court did
not, however, cast any doubt on the holding in Neustadt that Section
2680(h) precludes a claim that a plaintiff relied on a communication
that was the product of an allegedly negligent governmental
inspection.  See slip op. 7-8.

   Respondents' claims cannot be construed as involving anything more
than reliance on the incorrect communication of information through
the issuance of certificates.  Respondents were not involved in the
FAA's inspection and certification process;  thus, even if some other
duty could be derived from the inspection process, it would extend
only to the persons in the position comparable to the plaintiff in
Neal -- Aerodyne in United Scottish Insurance and Boeing in Varig
Airlines and Mascher.  No duty other than the issuance on an accurate
certificate based on the inspection could possibly extend to third or
fourth parties such as respondents.  /44/ See, e.g., Baroni v. United
States, 662 F.2d 297 (5th Cir. 1981), cert. denied, No. 81-1326 (Mar.
21, 1983);  Reynolds v. United States, supra.

   In the present cases, there is no activity on the part of the
government analogous to the supervision of the construction of the
plaintiff's home in Neal.  Here, respondents incurred injury because
they allegedly relied, directly or indirectly, on the government's
misrepresentation, which was communicated through a certification
document.  Accordingly, respondents' claims are barred by the
misrepresentation exception to the Tort Claims Act.

                              CONCLUSION

   The judgments of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   CARTER G. PHILLIPS

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   JOHN C. HOYLE

      Attorneys

   AUGUST 1983

   /1/ This opinion was originally handed down on October 8, 1982.  It
was subsequently reissued on October 26, 1982, to include Emma Rosa
Mascher v. United States in the caption.

   /2/ The legislation was passed primarily to consolidate in one
agency the regulatory functions previously undertaken by several
different agencies.  In addition, Congress wanted to increase the
degree of economic regulation of air carriers.  H.R. Rep. No. 2254,
75th Cong., 3d Sess 1-2 (1938).  Accordingly, the legislative history
contains little discussion regarding regulation of safety in air
commerce.

   /3/ As an indication of the magnitude of the agency's task in
attempting to assure that a type design complies with the hundreds of
different minimum safety standards, one manufacturer estimated that in
the course of obtaining a type certificate for a new aircraft it would
submit to the FAA approximately 300,000 engineering drawings and
changes, 2000 engineering reports and 200 vendor reports.  In
addition, the manufacturer would submit data from some 80 ground tests
and 1600 flight test hours.  See NAS Report, supra, at 29.

   /4/ A copy of the FAA's Handbook has been lodged with the Clerk of
this Court.

   /5/ Supplemental type certificates are the certificates most
frequently issued by the FAA, especially with regard to general
aviation aircraft.  Last year the FAA issued more than 1,800
supplemental type certificates.

   /6/ 14 C.F.R. 21.33(b) provides:

         Each applicant must make all inspections and tests necessary
      to determine --

         (1) Compliance with the applicable airworthiness and aircraft
      noise requirements;

         (2) That materials and products conform to the specifications
      in the type design;

         (3) That parts of the products conform to the drawings in the
      type design;  and

         (4) That the manufacturing processes, construction and
      assembly conform to those specified in the type design.

   /7/ The NAS Report (at 29-30) explains the magnitude of the
certification process and the agency's response to it:

         FAA engineers cannot review each of the thousands of
      drawings, calculations, reports, and tests involved in the type
      certification process;  yet the agency must be certain that each
      design for a new airplane meets all the regulatory requirements.
       The present system thus depends not only on the quality of the
      FAA staff but also on the assistance rendered by aircraft
      company employees called Designated Engineering Representatives
      (DERs) who review the design and design process to make sure, on
      behalf of the FAA, that all aspects of the regulations are
      complied with.

   /8/ The non-employee representatives are not subject to any direct
FAA control, but there are spot checks of their work.  See generally
Dilk, Negligence of FAA Administration Delegates Under the Federal
Tort Claims Act, 42 J. Air L. & Com. 575, 583 (1976).

   /9/ For aircraft manufactured pursuant to a previously issued
production certificate, the agency's manual expressly relieves the
manufacturer of the obligation to submit each airplane to an agency
inspection.  The manual states:  "(N)or is it necessary for the FAA
representative to inspect each aircraft to determine conformity with
the approved type design." FAA, Airworthiness Certification of
Aircraft and Related Approvals 30-31 (1982).  A copy of this manual
has been lodged with the Clerk of this Court.

   /10/ The record fails to establish either who inspected the
installation or even if there actually was an inspection.
Accordingly, there is no evidence reflecting the quality of the
inspection.  The evidence at trial indicated only that an employee of
the FAA signed the final certificate and that he relied on the FAA's
general practices to ensure that there had been a compliance
inspection (J.A. 280).

   /11/ Frepondents Fleming and Cearley settled claims against
Catalina-Vegas Airlines for a total of $100,000 received from its
insurer.  Law suits on behalf of respondents also were filed in Texas
state court against Aerodyne.  Those suits apparently are still
pending.

   /12/ The district court subsequently awarded a total of $200,000 in
damages against the United States.

   /13/ Respondent Dowdle's mechanic testified that he relied upon the
supplemental type certificate in deciding whether to approve the
airplane for purchase (J.A. 229).  Respondent Cearley testified that
her husband, a passenger on the plane, was aware of the government's
regulatory efforts to make air travel safe (J.A. 238-239).

   /14/ Section 323 of the Restatement provides:

         One who undertakes, gratuitously or for consideration, to
      render services to another, which he should recognize as
      necessary for the protection of the other's person or things, is
      subject to liability to the other for physical harm resulting
      from his failure to exercise reasonable care to perform his
      undertaking, if

         (a) his failure to exercise such care increases the risk of
      such harm, or

         (b) the harm is suffered because of the other's reliance upon
      the undertaking.

   Section 324A of the Restatement provides:

         One who undertakes, gratuitously or for consideration, to
      render services to another which he should recognize as
      necessary for the protection of a third person or his things, is
      subject to liability to the third person for physical harm
      resulting from his failure to exercise reasonable care to
      protect his undertaking, if

         (a) his failure to exercise reasonable care increases the
      risk of such harm, or

         (b) he has undertaken to perform a duty owed by the other to
      the third person, or

         (c) the harm is suffered because of reliance of the other or
      the third person upon the undertaking.

   /15/ There is no evidence that an Export Certificate was ever
requested by or issued to respondent Varig or the appropriate
Brazilian agency.  J.A. 105;  see page 7, supra.

   /16/ Representatives of the passengers also brought suit in New
York state court against Boeing Company, Seaboard World Airlines, and
five subcomponent manufacturers.  These suits were settled in 1977.
In addition, claims on behalf of the victims were filed against
respondent Varig, but under the provisions of the Warsaw Convention,
Varig's liability in the event of the death of a passenger was limited
to $10,000 per passenger.

   Varig Airlines brought a separate action against Boeing and a
subcomponent manufacturer in the United States District Court for the
Central District of California.  The district court granted summary
judgment for the defendants and the court of appeals affirmed.  S.A.
Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. Boeing, 641
F.2d 746 (9th Cir. 1981).

   /17/ The applicable regulation, CAA Section 4b.381 and (d),
provided (quoted in 82-1349 Pet. App. 3a):

         Cabin Interiors.  All compartments occupied or used by the
      crew or passengers shall comply with the following provisions.

                      * * * * *

         (d) All receptacles for used towels, papers, and waste shall
      be of fire-resistant material, and shall incorporate covers or
      other provisions for containing possible fires.

   No identical provisions exist in the FAA's regulations, but they do
require that each compartment to be used by the crew or passengers
must be made of flame resistant materials.  14 C.F.R. 23.853.

   /18/ Judge Chambers' concurring opinion in United Scottish
Insurance also applied to this case (692 F.2d at 1212).  See page 14,
supra.

   /19/ See, e.g., 67 Cong. Rec. 11092, 11100 (1926) (remarks of Reps.
Celler, Underhill);  69 Cong. Rec. 2192, 3118 (1928) (remarks of Reps.
Lozier, Box);  General Tort Bill:  Hearing Before a Subcomm. of the
House Comm. on Claims, 72d Cong., 1st Sess. 17 (1932);  Tort Claims
Against the United States:  Hearings on H.R. 7236 Before Subcomm. No.
1 of the House Comm. on the Judiciary, 76th Cong., 3d Sess. 16 (1940);
 Tort Claims Against the United States:  Hearings on S. 2690 Before a
Subcomm. of the Senate Comm. on the Judiciary, 76th Cong., 3d Sess.
27-28 (1940);  Tort Claims:  Hearings on H.R. 5373 and H.R. 6463
Before the House Comm. on the Judiciary, 77th Cong., 2d Sess. 28, 37,
39, 66 (1942);  H.R. Rep. No. 2428, 76th Cong., 3d Sess. (1940);  H.R.
Rep. No. 2245, 77th Cong., 2d Sess. 10 (1942);  H.R. Rep. No. 1287,
79th Cong., 1st Sess. 5 (1945);  S. Rep. No. 1400, 79th Cong., 2d
Sess. 31 (1946).  The Tort Claims Act was adopted in 1946 after more
than 20 years of congressional consideration.  This Court has
recognized that legislative statements made with regard to earlier
versions of the FTCA are useful in understanding the meaning of the
Act as eventually passed.  Dalehite v. United States, 346 U.S. 15,
26-30 (1953).

   /20/ Another factor in Feres v. United States, supra, persuaded the
Court that Congress did not intend to waive sovereign immunity in the
circumstances of that case.  The Court pointed to the need for uniform
rules to govern federal activities that occur nationwide and the
incongruity of subjecting military affairs to the vagaries of tort
laws in the different states.  Similarly, here, Congress enacted a
scheme designed to create a uniform set of aviation safety standards.
Tort litigation in various localities will necessarily impair
uniformity in the minimum standards.  Compare George v. United States,
703 F.2d 90, 91-92 (4th Cir. 1983) (copper and stainless steel
coupling is not a safety defect), with J.A. 314-315 (copper and
stainless steel coupling is a defect).  Indeed, under the conflict of
laws ruling by the district court in United Scottish Insurance
(82-1350 Pet. App. 10a), it is impossible to predict what legal
standard might be applied to any given inspection.  The inspections in
that case took place, if at all, in Texas and thus that State's tort
law would seemingly apply.  But the district court decided that Texas
would adopt California law because respondents resided in California
and purchased their airplane tickets there.  Since the governing law
to be applied turns on such fortuity, uniformity in inspection
standards in plainly unattainable.

   /21/ The "discretionary function" exception to the Tort Claims Act,
28 U.S.C. 2680(a), provides comparable, and to a certain extent
overlapping, protection against suits challenging regulatory
activities, thus emphasizing Congress' concern that the United States
not be held liable in damages for engaging in core governmental
activities.  As explained below, we also believe that these suits are
barred by that provision.  See pages 42-46, infra.

   /22/ It is unlawful "(f)or any person to operate in air commerce
any civil aircraft for which there is not currently in effect an
airworthiness certificate" (49 U.S.C. 1430(a)(1)).  FAA inspection and
certification, therefore, are integral steps in a program of law
enforcement rather than a service performed for a particular airline
or air passenger.  See Federal Aviation Act:  Hearings on H.R. 12616
Before a Subcomm. of the House Comm. on Interstate and Foreign
Commerce, 85th Cong., 2d Sess. 329 (1958).

   /23/ See generally Note, Liability of Certifiers of Quality to
Ultimate Consumers, 36 Notre Dame Law.  176, 183 (1961);  Note, Tort
Liability of Independent Testing Agencies, 22 Rutgers L. Rev. 299,
325-326 (1968);  Note, Liability of a Testing Company to Third
Parties, 1964 Wash. U.L.Q. 77, 96-97.  Indeed, California has
recognized that such laboratories may be liable for negligently
certifying the safety of a product.  See Hanberry v. Hearst Corp., 276
Cal. App. 2d 680, 683, 81 Cal. Rptr. 519, 521 (Ct. App. 1969).  The
basis for liability was, however, "negligent misrepresentation," which
is expressly excluded from the waiver of sovereign immunity in 28
U.S.C. 2680(h).  See United States v. Neustadt, 366 U.S. 696 (1961),
and pages 46-50, infra.

   /24/ Needless to say, not a word in the voluminous legislative
history of the FTCA supports such a result.  Compare United States v.
Muniz, supra, 374 U.S. at 153-158.

   /25/ 42 U.S.C. 2201(o).  Indeed, there is now pending a Tort Claims
Act suit for $4 billion arising out of the NRC's regulatory activities
with regard to the Three Mile Island nuclear reactor.  See General
Public Utilities Corp. v. United States, 551 F. Supp. 521 (E.D. Pa.
1982).  The government's motion to dismiss the complaint was denied on
grounds similar to those relied on by the court below.  The United
States Court of Appeals for the Third Circuit has granted our petition
for an interlocutory appeal (No. 83-1017).

   /26/ 21 U.S.C. (& Supp. V) 374.  See Anglo-American & Overseas
Corp. v. United States, 144 F. Supp. 635 (S.D.N.Y. 1956), aff'd, 242
F.2d 236 (2d Cir. 1957).

   /27/ 12 U.S.C. (Supp. V) 1820(b).  See First State Bank v. United
States, 599 F.2d 558 (3d Cir. 1979), cert. denied, 444 U.S. 1013
(1980).

   /28/ 29 U.S.C. 657.  See Davis v. United States, 536 F.2d 758 (8th
Cir. 1976), aff'g 395 F. Supp. 793 (D. Neb. 1975).

   /29/ 30 U.S.C. (Supp. V) 813.  See Raymer v. United States, 660
F.2d 1136 (6th Cir. 1981), cert. denied, 456 U.S. 944 (1982).

   Of course, the list in the text only touches the surface.  A
cursory examination of the regulatory activities of several government
agencies reveals an extraordinary array of inspection and
certification activities.  See, e.g., 42 U.S.C. (& Supp. V) 1472
(Farmers Home Administration inspects homes built with financial
assistance provided by the agency, see 7 C.F.R. 1804.4(d));  7 U.S.C.
(& Supp. V) 77 (Department of Agriculture inspects and certifies grain
shipped from the United States to a foreign jurisdiction);  21 U.S.C.
455 (Department of Agriculture inspects poultry products);  21 U.S.C.
(Supp. V) 603 (Department of Agriculture inspects "all cattle, sheep,
swine, goats, horses, mules and other equines" before slaughtering,
packing, or meat-canning);  7 U.S.C. (Supp. V) 150ff (Department of
Agriculture inspects for plant pests persons or articles transported
into this country);  21 U.S.C. 693 (Department of Agriculture inspects
and certifies dairy products intended for export);  33 U.S.C. (& Supp.
V) 1318 (Environmental Protection Agency inspects premises where an
effluent source is located);  15 U.S.C. 2610 (Environmental Protection
Agency inspects premises where work with chemical substances is
performed);  7 U.S.C. 136g (Environmental Protection Agency inspects
establishments where pesticides are distributed or sold);  42 U.S.C.
(Supp. V) 6927 (Environmental Protection Agency inspects hazardous
waste facilities);  45 U.S.C. 23 (Department of Transportation
inspects locomotives, see Norfolk & W.Ry. v. Brotherhood of Locomotive
Engineers, 459 F. Supp. 136, 143-44 (W.D. Va. 1978);  46 U.S.C. 39
(Coast Guard inspects and certifies biennially the hull and equipment
of cargo barges over 100 gross tons);  15 U.S.C. (& Supp. V) 1401
(Department of Transportation inspects facilities manufacturing or
introducing motor vehicles into commerce, see 49 C.F.R. 554.1 et
seq.);  49 U.S.C. (& Supp. V) 1680, 1681(c) (Department of
Transportation inspects pipeline facilities);  33 U.S.C. 1512
(Department of Transportation inspects deepwater ports);  33 U.S.C.
467a (Department of Army inspects dams);  38 U.S.C. 642 (Veterans
Administration inspects state nursing care homes);  18 U.S.C. 923(g)
(Department of Treasury inspects firearms or ammunition kept by
importers, manufacturers, dealers and collectors);  21 U.S.C. 44
(Department of Health and Human Services inspects teas entering the
United States);  15 U.S.C. 2065 (Consumer Product Safety Commission
inspects establishments manufacturing, holding or transporting
consumer products in commerce, see 16 C.F.R. 118.1 et seq. (1982),
1605.1 et seq.; and 42 U.S.C. (& Supp. V) 5413 (Department of Housing
and Urban Development inspects the construction of mobile homes).

   /30/ The Sixth Circuit recognized this in Garbarino v. United
States, 666 F.2d 1061, 1066 (1981):  "(T)o extend the Government's
liability to situations involving the alleged negligent issuance of
safety inspection certificates * * * would be to make the Government a
joint insurer of all activity subject to safety inspections." The
facts of the Varig Airlines and Mascher cases show that this concern
is not farfetched.  There, the FAA inspection took place in 1958;  the
accident occurred on a flight by a foreign air carrier from Brazil to
France in 1973.

   /31/ Respondents in United Scottish Insurance (Br. in Opp. 5) have
attempted to bolster their state law argument by relying upon Dahms v.
General Elevator Co., 214 Cal. 733 (1932).  In Dahms, the defendant
had contracted with the plaintiff's employer to maintain and repair an
elevator, which later fell and injured plaintiff.  The FAA's
inspections, which are designed to protect the public, are in no way
comparable to inspections by a private company that contracts to
guarantee the safety of a particular piece of equipment.  "Our common
law has always placed great emphasis on possible pecuniary benefit to
the defendant as a criterion in determining whether or not he is under
a duty of care." Gregory, Gratuitous Undertakings and the Duty of
Care, 1 DePaul L. Rev. 30, 53 (1951).  Nor can respondents argue that
their relationship with the FAA as third and fourth party
"beneficiaries" is at all comparable to the direct relationship
between the plaintiff and the defendant in Dahms.

   /32/ A third ground for liability arises if the good samaritan
undertakes to perform a duty owed by another to a third person.
Restatement (Second) of Torts Section 324A(b) (1965).  That aspect of
the doctrine does not apply to these cases, because the manufacturer
or operator of an aircraft retains the primary duty under the statute
to comply with minimum safety standards.  The FAA's certification
process in no way substitutes for that duty.

   /33/ This more limited concept of reliance is fully consistent with
our submission regarding the type of service that is required under
the good samaritan doctrine.  Specific reliance will generally follow
when one person performs a direct service for another.  But the FAA
performed no service for any of the respondents.

   /34/ Respondents in Mascher rely solely on an affidavit of the
brother of one of the passengers (see Brief for Appellant in No.
81-5399, at 8-9) asserting that the deceased passenger had "complete
faith" in American planes because they were subject to rigid
government inspections.  If such generalized expectations were
sufficient, virtually everyone could be said to rely on the FAA's
efforts to enforce compliance with safety regulations;  under the
court of appeals' theory, the United States would be liable whenever a
plane manufactured in the United States crashed anywhere in the world
due to a mechanical failure.

   /35/ Varig's actual reliance on the FAA's certification process is
belied by the record.  When Varig had the aircraft exported from the
United States, it did not even request the issuance of a Class I
Export Certificate of Airworthiness from the FAA (see page 7, supra).
In the absence of such a certificate, the United States government
makes no representation of regulatory compliance with respect to an
exported aircraft.  14 C.F.R. 21.335(e).  When the aircraft was sold
to Varig in 1969, four years prior to the crash, it was removed from
the United States Civil Aircraft Registry and from the regulatory
authority of the FAA (J.A. 104).  The aircraft, at that time, was
placed on the Brazilian registry, and, accordingly, was within the
Brazilian government's control.  J.A. 106.

   /36/ Obviously, if the inspection were conducted by a designated
representative of the manufacturer, then the United States would not
be liable since the FTCA is limited to claims of negligence by federal
employees.  Se United States v. Orleans, 425 U.S. 807 (1976);
Garbarino v. United States, 666 F.2d 1061, 1066 (6th Cir. 1981).

   /37/ Indeed, the FAA's determination whether to issue a type
certificate has been characterized as a "regulatory adjudication." See
Harrison and Kolczynski, Government Liability for Certification of
Aircraft?, 44 J. of Air L. & Com. 23, 35 (1978).

   /38/ The development and promulgation of the FAA's airworthiness
standards is a function that involves technical judgment and policy
considerations at the highest levels of the FAA.  To a layperson, the
airworthiness standards may appear to be very detailed and explicit.
To the designer, engineer, flight test pilot or inspector, however,
the standards are relatively general and require considerable
discretion in their application.  See note 39, infra.  Indeed, in
order not to inhibit new design concepts or techniques, and to permit
flexibility and new technologies, the airworthiness standards are
intentionally worded to achieve a safety objective without
establishing fixed design specifications.  See NAS Report, supra, at
25, 33.

   /39/ The examples in the text are not atypical.  For example, the
flight requirements for aircraft "must show suitable stability and
control 'feel' * * * in any condition normally encountered in service
* * * ." 14 C.F.R. 23.171.  Similarly, the standard for an aircraft's
electrical system is generally that it "must be adequate for its
intended use." 14 C.F.R. 23.1351(a).  The application of these
standards is obviously not a ministerial chore.

   /40/ See, e.g., Parrish, Outfitting in 1983:  A Buyer's Market, 52
Bus. & Com. Aviation 76, 82 (1983):

      When a newly outfitted or refurbished aircraft is inspected by
      the FAA for compliance with regulations, there

is no way for agency inspectors to confirm that all the interior
materials and installations procedures -- particularly regarding the
use of new-technology materials -- meet the applicable standards.
Inspectors and operators must rely on the integrity of the outfitting
center and its suppliers to use the appropriate materials.

   /41/ Lower courts have uniformly held that discretionary decisions
implementing analogous types of law enforcement activities are
immunized by the discretionary function exception.  See, e.g., Hoffman
v. United States, 600 F.2d 590 (6th Cir. 1979), cert. denied, 444 U.S.
1073 (1980);  Lawrence v. United States, 381 F.2d 989, 990-991 (9th
Cir. 1967);  Smith v. United States, 375 F.2d 243 (5th Cir.), cert.
denied, 389 U.S. 841 (1967).

   /42/ This illustration also was used in the Restatement of Torts
Section 311 (1934).  In enacting Section 2680(h), Congress intended to
adopt the commonly understood definition of "misrepresentation,"
United States v. Neustadt, 366 U.S. 696, 707 (1961), which is best
ascertained from the Restatement of Torts in existence at the time.

   /43/ Prior to the enactment of the Tort Claims Act, it was common
for inspectors to be sued under a theory of negligent
misrepresentation for the "careless performance of a service" leading
to "careless words" certifying the existence of a particular set of
facts.  Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922).  See
also Mulroy v. Wright, 185 Minn. 84, 240 N.W. 116 (1931);  Ultramares
Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931);  National Iron &
Steel Co. v. Hunt, 312 Ill. 245, 143 N.E. 833 (1924);  Gordon v.
Livingston, 12 Mo. App. 267 (1882);  Tardos v. Bozant, 1 La. Ann. 199
(1846);  Annot., 68 A.L.R. 375 (1930);  Annot., 34 A.L.R. 67 (1925);
F. Harper, A Treatise on the Law of Torts Section 76 (1933).  In some
cases, however, recovery was denied because the particular
jurisdiction did not recognize the tort of negligent
misrepresentation.

   /44/ Indeed, it was remote claims by individuals in the position of
respondents that in all likelihood prompted Congress to include the
misrepresentation exception in the Tort Claims Act.  England denied
recovery for all negligent misrepresentations until 1963.  Compare
Derry v. Peek, 14 App. Cas. 337 (1889), with Hedley Byrne & Co. v.
Heller & Partners, 1964 App. Cas. 465.  According to Dean Prosser, a
majority of courts in this country follow Derry v. Peek, and deny
recovery for innocent or negligent misrepresentations generally, out
of fear that the scope of liability would be difficult to limit once
recovery is recognized.  See W. Prosser, Handbook of the Law of Torts
706-707 (4th ed. 1971);  Ultramares Corp. v. Touche, 255 N.Y. 170,
179, 174 N.E. 441, 444 (1931).

   Appendix Omitted