Unpublished Disposition, 877 F.2d 64 (9th Cir. 1986)

MEMORANDUM^** 

Gary E. Racine appeals from the dismissal of his tort claim against the United States Department of the Interior, Bureau of Indian Affairs ("BIA") for the breach of the duty of good faith and fair dealing. The district court dismissed for lack of jurisdiction. We affirm.

FACTS AND PROCEEDINGS BELOW

Racine applied to the BIA for a position as a criminal investigator on the Blackfeet Indian Reservation, Montana. In March 1986, the BIA informed him that he had been tentatively selected for the position, but that final approval hinged on the receipt of completed employment forms. Racine completed and returned the relevant forms, but received no final notification. On May 14, 1986, he was informed that his appointment had not been finally approved because of a hiring freeze.

Racine commenced this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., arguing that the BIA negligently remained ignorant of the freeze when it tentatively selected Racine, and that upon learning of the hiring freeze, the BIA negligently failed to ascertain whether Racine could be hired in spite of the freeze. He claimed he relied upon the March notification of his tentative selection to his detriment and sought $250,000 in damages.

DISCUSSION

The FTCA is a limited surrender of sovereign immunity, and its terms expressly define the limits of a district court's subject matter jurisdiction. See Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983). Racine attempts to base district court jurisdiction on 28 U.S.C. § 1346(b). That section waives sovereign immunity "for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting in the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Racine argues that the United States, if a private person, would be liable under Montana law because Montana recognizes a tort for breach of the duty of good faith and fair dealing that arises in the employment context as a matter of law. See Gates v. Life of Montana Ins. Co., 668 P.2d 213, 214-15 (Mont.1983).

The district court concluded that even if Racine had an employment contract with the Government, and even if a good faith obligation attends such contracts, "claims based upon wrongful discharge under a contract of federal employment are 'wholly alien' to the remedy provided for tortious conduct under the FTCA."

It is true that claims relating to internal employment relationships between the United States Government and its employees generally do not sound in tort and are not cognizable under the FTCA. See 2 L. Jayson, Handling Federal Tort Claims Sec. 212.03, at 9-24 (1989) (citing cases). However, the cases cited by the district court in support of its opinion do not compel finding no jurisdiction in this case. In Young v. United States, 498 F.2d 1211 (5th Cir. 1974), the court upheld the dismissal of a tort claim based on breach of an implied employment contract for lack of jurisdiction because the claim really rested on asserted failures to comply with employment procedures, and so more closely resembled a due process claim than a tort claim. Id. at 218. The court noted that an administrative remedy was available for such claims, and expressly declined to comment on whether a cause of action under the FTCA could ever arise in the employment context. Id. In Schuler v. United States, 628 F.2d 198 (D.C. Cir. 1980) (en banc), the court declined to address whether the complainant could sustain an FTCA claim for wrongful termination because any such claim was time barred. Finally, in Premachandra v. United States, 574 F. Supp. 365 (E.D. Mo. 1983), the court found foreclosed any remedy under the FTCA for wrongful discharge because the Merit Systems Protection Board provided the exclusive remedy for such claims. Racine asserts no other remedy is available to him.

We need not decide whether a district court may ever exercise jurisdiction over a tort claim under the FTCA in the employment context because we find jurisdiction lacking under the discretionary function exception, 28 U.S.C. § 2680(a).

That exception provides that no liability shall lie for " [a]ny claim 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." Id. To qualify as a discretionary function, government conduct must involve an element of judgment and must be based on considerations of public policy. Berkovitz By Berkovitz v. United States, 108 S. Ct. 1954, 1958-59 (1988). Further, negligence is not a relevant factor: section 2680(a) exempts discretionary functions from the FTCA's waiver of immunity without regard to whether those functions have been carried out in a negligent manner. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir. 1986).

According to Racine's own version of the facts, the BIA tentatively selected Racine for a position and so informed him. Thereupon it learned of the hiring freeze, and declined finally to approve Racine's position. The decisions tentatively to select Racine for the position of criminal investigator and to withhold final approval because of the hiring freeze were discretionary decisions. See Sampson v. Murray, 415 U.S. 61, 70 n. 17 (1973) ("The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment.... Therefore it is one of those acts over which the courts have no general supervision."); Riplinger v. United States, 695 F.2d 1163, 1165 (9th Cir. 1983); cf. Myers & Myers, Inc. v. United States Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975) (award of Government contracts generally held to involve the exercise of a discretionary function). The BIA's alleged negligence in failing to learn of the freeze before making its selection or in failing to discover whether Racine could be hired in spite of the freeze is not relevant.

AFFIRMED.