Of course, privatization is not supposed to mean that the availability of aviation weather forecasting will disappear. For the pilot, it clearly means that such information will be available for a price. What is not clear, however, is the level of completeness, accountability and accuracy of the aviation weather forecast that is no longer developed by a presumably neutral federal agency, but by private enterprise. Nor is it clear what will happen should the quality of the forecast come into play as a potential cause of some future aviation accident.
An occasional consequence of aviation-related accidents has been a legal action against Federal Aviation Administration or National Weather Service personnel for failing to forecast severe weather conditions which contributed to an aviation accident. On other occasions, the FAA has been sued for failing to report then current severe weather conditions to pilots flying into or out of airports with terminal control facilities.
Historically, a government could not be sued in court under the doctrine of sovereign immunity unless it consented to being sued beforehand. Thus, under this doctrine, governments could never be sued for injury or damage to individuals or their property, unless it constituted a taking of life or property contrary to the constitutional requirements of due process and for just compensation for property taken without consent.
The privatization of aviation weather forecasts would remove this limitation as to any private business enterprise that took over this role, absent federal protection similar to the doctrine of sovereign immunity, or the limitation of liability similar to the Federal Tort Claims Act, enacted in 1947.
In general, claims under the Federal Tort Claims Act (FTCA) must involve negligence; it cannot involve claims for intentional torts. FTCA claims cannot be used to challenge the discretionary actions of a federal agency or the discretionary function of federal officer or employee.
Under the FTCA, the claim must involve damages for injury or loss of person or property caused by negligent or wrongful act of employee within scope of employment under circumstances that a private person would have legal liability, other than claims involving: (1) employee conduct which was not negligent in executing a statute or regulation; (2) an injury or damage related to a discretionary function of the employee, officer or agency; (3) negligence, loss, or miscarriage of postal matters; (4) any of the intentional torts (i.e., assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights); (5) combatant activities of the military in wartime; and (6) incident in foreign country.
While reported federal court decisions suggests that weather forecasts involve discretionary functions, and thus, do not form a basis for a claim under the FTCA, the failure of air traffic control or other federal personnel to relay information on then current severe or threatening weather conditions is not discretionary, and could serve as a basis for a claim under FTCA if negligence is shown.
A private firm, absent special legislation providing immunity from court claims, could be sued for negligence or for intentional tort, whether or not it involved “discretionary functions”, or the other limitation on federal government tort liability.
FTCA claims must first be presented to the particular federal agency for possible resolution and settlement. Thus, all of the internal administrative procedures within the agency must be exhausted before a claimant files a lawsuit. Under the FTCA, the U.S. Attorney General may defend federal employees from claims under FTCA. Once the claim is reduced to a judgment, that claim may not be brought directly against employee. Private businesses could not impose similar resolution procedures on recipients of their forecasts except by contract with the recipient of the information as a condition of purchase of the information, or unless such a requirement were to be included by Congress in legislation directing the privatization effort.
Federal district courts have exclusive jurisdiction for FTCA claims. Any civil action under the FTCA can be brought only in the federal court district where the plaintiff resides or where the act of omission occurred. Appeals must go to the U.S. Court of Claims within 90 days after district court decision. Thereafter the federal court of appeals may review the case. In any event, claims under the FTCA must be brought in court within 2 years after the incident or injury. The government’s liability extends only to nominal and compensatory damages; no punitive damages are permitted.
As the FTCA restricts cases to federal court, a claim filed in a state court can be removed to the federal court where the federal agency certifies that its employee was acting within federal employment and action is the type to be brought under FTCA. If a federal court determines that the case does not come within FTCA, it is returned to state court. At the current time, it does not appear that claims against privatized weather forecast services would be limited to particular courts; rather, the general jurisdictions of particular courts would determine whether a court had authority to hear the contract or tort claim.
Even in the event of a lawsuit against government officers for the common law intentional torts, a claim will not prevail if the officer or employee can properly assert a claim of official immunity. This defense is available if the injury or claim is the result of the federal employee’s exercise of a discretionary function officially vested in that person. For example, official immunity is given to the President, to legislators (acting in their legislative capacity only), to judges (acting in their judicial function only), and to administrative officers (who are exercising discretionary adjudicative functions only). In addition, there is a qualified immunity for any federal employee for their actions taken in good faith within their authorized duties of federal employment. It is unlikely that this defense would exist for privatized weather forecasting activity.