OPAL V. MITCHELL AND WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES,
PETITIONERS V. UNITED STATES OF AMERICA AND BONNEVILLE POWER
ADMINISTRATION

   No. 87-301

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Memorandum for the Respondents in Opposition

   Petitioners contend that the decision of the Bonneville Power
Administration ("BPA"), a federal agency, to follow Federal Aviation
Administration (FAA) guidelines on the marking of its power lines does
not fall within the "discretionary function" exception of the Federal
Tort Claims Act, 28 U.S.C. 2680(a).

   1. In May 1980, Vernon Mitchell, petitioners' decedent, was killed
while crop dusting a field located in a valley near the Yakima River
in Washington when his airplane struck an unmarked wire strung across
the valley as part of BPA's power transmission system (Pet. App. A1,
B2-B4).  The BPA had not marked the wire, which was 400 feet above the
ground (Pet. 4), because it decided to rely on FAA guidelines
regarding the marking of power lines.  Those guidelines required
marking of power lines only at heights of 500 feet or greater (Pet.
App. A3).  Washington state law requires markings for wires or lines
as low as 150 feet where, as presumably was the case here, they cross
certain routes frequented by small aircraft (Pet.5).

   The district court rejected the government's contention that
petitioners' suit under the FTCA was barred by the
discretionary-function exception, 28 U.S.C. 2680(a), reasoning that
the agency decision was made at the operation level rather than at the
planning level (see pet. App. A3).  The court imposed liability after
concluding that the BPA was negligent in failing to mark the ground
wires and in "blindly relying upon the advice of the Federal Aviation
Administration as to whether or not the lines should be marked without
making any independent investigation or inquiry itself or seeking
comments specifically from pilots or pilot organizations * * * " (id.
at B5).  The court also found that Mr. Mitchell was 25% contributorily
negligent (id. at B8).

   The court of appeals reversed, holding that the BPA's decision to
rely on the FAA policy was insulated from tort liability by the
discretionary-function exception to the FTCA.  "The BPA did not
negligently install or maintain warning devices, but rather,
affirmatively decided to adopt the FAA's policy of not marking ground
wires below 500 feet" (Pet. App. A3).  The court rejected petitioners'
argument that the BPA was without discretionary authority to breach
the mandatory duty of care imposed by Washington law, because
"(n)egligence * * * is irrelevant to the discretionary function issue.
 The FTCA itself exempts discretionary functions 'whether or not the
discretion involved be abused.' 28 U.S.C. 2680(a)." Id. at A3-A4.

   2. The court of appeals was plainly correct.  As petitioners note
(Pet. 4), "(t)he BPA has established a policy of following the
guidelines of the (FAA)." The decision to rely on the federal agency
with expertise in airplane safety and a statutory mandate to regulate
air safety, 49 U.S.C. 1421, is, as the court of appeals concluded
(Pet. App. A3), obviously a discretionary decision founded on policy
judgment.  It is therefore protected by the discretionary-function
exception to the FTCA.  See United States v. S.A. Empresa de Viacao
Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984).  Of
course, the protected decision to adhere to the FAA guidelines makes
irrelevant the breach of any other applicable duty to warn.

   The decision of the court of appeals presents no conflict
warranting this Court's review.  First, contrary to petitioners'
contention (Pet. 7-8), Aslakson v. United States, 790 F.2d 688 (8th
Cir. 1986), does not conflict with the decision below, because the
federal agency in that case was held liable for negligently
implementing its policy of raising its power lines in certain
circumstances (id. at 693).  Here, the alleged negligence was not in
BPA's implementing a policy, but in making the policy decision to
follow FAA guidelines.  Second, any apparent conflict among the
circuits on whether the distinction between operational and planning
decisions is relevant to applying the discretionary-function exception
(Pet. 9-11) is simply immaterial in this case.  The BPA's decision to
follow FAA guidelines obviously was one of planning, which would fall
within the exception in every circuit.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   AUGUST 1987