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Kelly v. United States

ELR Citation: 31 ELR 20435
Nos. No. 99-35134, 241 F.3d 755/(9th Cir., 02/28/2001)

The court holds that the U.S. Forest Service's decision not to require its contract pilots to have a specific type of training is protected by the discretionary function exception to the Federal Tort Claims Act (FTCA). The families of two pilots who died when the airtanker the pilots were flying during a forest fire brought suit against the government under the FTCA claiming that the Forest Service owed the pilots a duty of care and that they breached this duty by failing to provide appropriate training. A district court agreed and found the Forest Service negligent. The court, however, first holds that the Forest Service's conduct of not requiring its contract pilots to undergo a certain type of training was discretionary. The families point to no statute, regulation, or policy that mandates the Forest Service to require the training. Additionally, the court holds that the decision of whether to require the training of contract pilots is susceptible to policy analysis. Further, the court rejects the families' argument that the Forest Service failed to follow industry safety standards and failed to act in the face of a known hazard, i.e., human error. There was no standard, industry or otherwise, with respect to requiring contract pilots to receive training. Therefore, the court holds that the Forest Service's decision of whether to require its contract pilots to undergo training is a policy judgment that is protected by the discretionary function exception and reverses and remands the case.

The full text of this opinion is available from ELR (16 pp., ELR Order No. L-331).

Counsel for Plaintiffs
Mark S. Connell
Connell Law Firm
234 E. Pine St., Missoula MT 59807
(406) 327-1517

Counsel for Defendant
Charles W. Scarborough
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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