Unpublished Disposition, 884 F.2d 582 (9th Cir. 1984)

MEMORANDUM^* 

The widow of a deceased veteran brought a survival claim under the Federal Tort Claims Act for damages for alleged injuries to decedent caused by the Veterans' Administration's handling of his case during his lifetime. The veteran's widow appeals the dismissal of her action.

Decedent Alan Bishop served in the Navy during World War II. He was discharged in December of 1944 because he suffered from shell shock. In 1946, the Administrator of the Veterans' Administration ("the Administrator") determined that Mr. Bishop was entitled to service-connected benefits for his condition.

As time went on, Mr. Bishop's condition worsened. In 1969, following a period of hospitalization, Mr. Bishop was diagnosed as "totally unemployable, certainly in the profession of law [Mr. Bishop's former profession], from this point on." His disability rating by this time had been increased to 70%; in 1969, the Administrator increased the rating to 100%.

In 1982, Mr. Bishop was 67 years old, and had been on 100% disability for 13 years. At that time, the Administrator, acting upon the directives of DVB Circular 21-82-9 ("the circular"), ordered review of Mr. Bishop's condition, and reduced Mr. Bishop's disability rating from 100% to 70%. The effect was that Mr. Bishop's benefits were reduced by half, from $1,288 per month to $610 per month.

After a hearing, the Rating Board affirmed the reduction. Either while the Board's decision was pending or sometime thereafter, Mr. Bishop suffered a severe heart attack. The reduction in his benefits, together with the financial burden resulting from his heart attack, led Mr. Bishop to despair that he would become bankrupt and leave his wife destitute.

Mr. Bishop appealed the Rating Board's decision to the Board of Veterans' Appeals (BVA). The BVA's decision was pending when, on May 17, 1984, Mr. Bishop committed suicide. Four days later, on May 21, the BVA determined that, the circular notwithstanding, Mr. Bishop was entitled to 100% benefits under Title 38.

LaVerna Bishop,¹  the representative of Alan Bishop's estate, brought this action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671 et seq., seeking relief for the torts of negligent performance of an undertaking to render services, intentional infliction of emotional harm, wrongful death, and wrongful civil proceedings.

The government filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, asserting that the district court lacked jurisdiction under both 38 U.S.C. § 211(a) and the FTCA's discretionary act exception, 28 U.S.C. § 2680(a). The district court granted the motion, basing its decision on both grounds, and dismissed the action.

Although the question whether the district court had jurisdiction to award damages is disputed, this court has jurisdiction under 28 U.S.C. § 1291 and Fed. R. App. P. 4, because the judgment appealed from is final and the notice of appeal was timely. Our review is de novo. Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 108 S. Ct. 2845 (1988).

Since Mr. Bishop in fact received all of his benefits posthumously, Bishop does not challenge the Administrator's benefits decision. Bishop instead alleges a tort, basing jurisdiction on the FTCA. Bishop apparently argues that the tort consisted either of the Administrator's decision to act under the circular, the terms of which were contrary to law, or of his initial decision to promulgate that circular.

In response, the Administrator argues that the district court correctly determined that it did not have jurisdiction over the claim. As did the district court, the Administrator relies upon both the FTCA and section 211(a) of Title 38. We hold that Bishop has not presented a claim for a tort for which the United States has waived its sovereign immunity, and accordingly, that the FTCA presents a firm obstacle to her suit.

Section 2680(a) sets forth the FTCA's discretionary act exception:

The provisions of this chapter and section 1346(b) of this title shall not apply to--

(a) 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). Thus, if the Administrator can show either that he was acting under a statute or regulation and was exercising due care, or that he was performing a discretionary function, however negligently, a remedy in tort is not available against him. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir. 1986) (discretionary act exception applies regardless of whether the discretion was abused), cert. denied, 108 S. Ct. 163 (1987).

If the action of the Administrator at issue here is his promulgation of the circular, then the discretionary act exception fully impedes a suit against him. Dalehite v. United States, 346 U.S. 15, 43 (1953) (adoption of regulations by a government agency is "classically within the exception" to the FTCA); Baie v. Secretary of Defense, 784 F.2d 1375, 1376 (9th Cir.) (FTCA's discretionary act exception bars jurisdiction where claim is attempt to test legality of a rule or regulation through the medium of a tort suit) (citing legislative history), cert. denied, 479 U.S. 823 (1986).

The Administrator also claims protection under the "action under statute or regulation" exception contained in section 2680(a). This argument appears to address the theory that the alleged tortious action of the Administrator is action under the circular, rather than the promulgation of the circular.

To refute this argument, Bishop makes two assertions: First, since the promulgation of the circular did not meet the requirements of the Administrative Procedures Act, 5 U.S.C. § 553, it did not have legal efficacy. Second, the circular could not have been "law" because its terms contradicted Regulations, published in the Code of Federal Regulations, governing the Administrator's actions.

Because we conclude that the Administrator's actions, however egregious, fall under the FTCA's discretionary action exception, we do not consider the applicability of 38 U.S.C. § 211(a). The tort alleged is not one for which the government has waived its immunity. The district court was therefore without jurisdiction, and properly dismissed the case. See MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987). Accordingly, we AFFIRM.