The opinion of the court was delivered by: BUCKLO
MEMORANDUM OPINION AND ORDER
The plaintiff, James Lee Barna ("plaintiff"), as Special Administrator of the Estate of James S. Barna, sued the United States of America ("United States"), under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. The United States moves for partial summary judgment. For the following reasons, the motion is denied.
In the early morning hours of May 4, 1993, James S. Barna crashed his twin-engine Beech aircraft into trees on a hill not far from the Tri-County Regional Airport in Lone Rock, Wisconsin. Mr. Barna was killed in the crash. Mr. Barna was performing a VOR-A instrument approach to the airport at the time of the crash. The VOR-A instrument approach utilizes a Very High Frequency ("VHF") Omni Range ("VOR") radio beacon to provide guidance to the pilot. Mr. Barna was using an instrument approach procedure ("IAP") chart published by the National Ocean Service ("NOS") at the time of the crash. The IAP chart depicts the proper VOR-A approach to the Tri-County Regional Airport. It is undisputed that the hill Mr. Barna crashed into is not depicted on the IAP chart. The plaintiff blames air traffic controller negligence and the failure to depict the hill on the IAP chart for the crash. The United States moves for summary judgment on the plaintiff's negligence claim for failure to depict the hill on the IAP chart.
At issue in this motion is the FTCA discretionary function exception which provides that the FTCA shall not apply to:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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). Whether the FTCA discretionary function exception applies in a particular case depends on two factors. Calderon v. United States, 123 F.3d 947, 949 (7th Cir. 1997). First, the government action must be discretionary; it must involve "an element of judgment or choice." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1987). Second, "a court must determine whether [the discretionary] judgment is of the kind that the discretionary function exception was designed to shield." Id. "Because the purpose of the exception is to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy...the exception protects only governmental actions and decisions based on considerations of public policy." United States v. Gaubert, 499 U.S. 315, 323, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1990)(internal quotations omitted).
The first issue that must be resolved is whether the United States decision not to chart the hill was a discretionary act. If a statute, regulation, or policy proscribes a course of conduct which must be followed, the discretionary function exception does not apply. Berkovitz, 486 U.S. at 536. The plaintiff argues the United States failed to comply with a Federal Aviation Administration ("FAA") Order and an Inter-Agency Air Cartographic Committee ("IACC") specification by not charting the hill.
The FAA publishes Agency Orders that guide the charting of obstacles on IAP charts. Agency Order 8260.19C specifically deals with charting "significant obstacles." (Df. Ex. 4 at § 816(e)). It states:
To identify certain significant obstacles in or near the instrument approach area, include locations and heights under additional flight data. If, in the opinion of the procedures specialist, these obstacles could be critical to flight safety, they should be prefaced by the word "Chart." However, if the data is being furnished only as information, it shall NOT be prefaced by the word "Chart." Charting agencies will chart any item marked "Chart." Any item listed without indicating "Chart" will be reviewed by the charting agencies and will be charted if it meets their charting specifications....
Agency Order 8260.19C, § 816(e)(emphasis in original). This Order permits the procedure specialist the leeway of determining which obstacles he or she thinks are critical to flight safety.
The Order does not provide a definition of "significant obstacle" and thus, the decision whether or not an obstacle is "significant" and whether it should be charted is left to the opinion of the procedure specialist. This involves "an element of judgment or choice." Berkovitz, 486 U.S. at 536.
The IACC, a body composed of members from the Department of Transportation, the Department of Commerce, and the Department of Defense, promulgates procedures for the National Oceanic Atmospheric Administration ("NOAA") to follow in preparing IAP ...