Magee v. U.S.

Decision Date08 May 1997
Docket NumberNo. 96-2357,96-2357
Citation121 F.3d 1
PartiesWilliam MAGEE, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Francis J. Caruso, III with whom Paul J. Gillespie and Gillespie & Associates, Lynnfield, MA, were on brief for appellant.

Julie S. Schrager, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief for appellee.

Before STAHL and LYNCH, Circuit Judges, and O'TOOLE *, U.S. District Judge.

STAHL, Circuit Judge.

Plaintiff-appellant William Magee appeals the grant of summary judgment in favor of defendant-appellee, the United States, with respect to his personal injury action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA").

Background

This case arose out of an automobile accident in which Peter Puzzanghera, an outpatient at the Veterans Administration Medical Center in Bedford, Massachusetts ("VAMC") rear ended Magee. As a result of the accident, Magee suffered physical injuries and property damage for which he seeks damages from the federal government. By way of background, we describe the relationship between the Veterans Administration ("VA") and Puzzanghera in order to explain how Magee came to sue the United States.

Puzzanghera has long battled chronic, paranoid schizophrenia. In August, 1988 he was involuntarily committed to Metropolitan State Hospital. In July, 1989, he was transferred to VAMC where he remained as an inpatient until late June, 1990. On June 20, 1990, he was discharged to the Fort Hill Community Care Home and continued to receive treatment at VAMC on an outpatient basis.

Puzzanghera's treatment at VAMC included periodic intermuscular injections of Prolixin Decanoate ("Prolixin"). VAMC physicians prescribed Prolixin to help Puzzanghera manage his schizophrenia. Following the onset of this treatment, Puzzanghera experienced restlessness and difficulty in moving his tongue, side effects that his doctors have attributed to the Prolixin.

VAMC has established a policy entitled Veterans Driver Evaluation Program for the purpose of aiding veterans in obtaining driver's licenses from the Massachusetts Registry of Motor Vehicles ("RMV"). Pursuant to this policy, VA doctors refer "selected patients whose rehabilitative prospects might be enhanced by having a driver's permit or license" to a VA psychologist for evaluation as to suitability. Depending on the outcome of this evaluation, the psychologist either determines that the patient is not a suitable candidate for a license, or submits a letter of support to the RMV on behalf of the patient. The letter details the patient's medical treatment and indicates that beyond the information in the letter, the VA knows of no "contraindication" to the RMV's consideration of the patient for restoration or continuance of driving privileges. The VA acknowledges in the letter, however, that the final decision regarding a given patient's driving privileges rests with the RMV.

At some time prior to April 1990, Puzzanghera requested his treating physician, Dr. Albert Gaw, to assist him in obtaining a driver's license. Dr. Gaw referred Puzzanghera to Dr. Robert Avey, a counselling psychologist at VAMC. After Dr. Avey evaluated Puzzanghera, he sent a letter to the RMV on his behalf. Puzzanghera subsequently received driving privileges.

In the afternoon of October 29, 1990, while Magee sat in his car at a red light, Puzzanghera rear ended Magee's car, causing bodily injury to Magee and damage to his vehicle. A police officer who arrived shortly after the accident noted that Puzzanghera appeared "very slow and deliberate in his actions." The officer performed two field sobriety tests which Puzzanghera "passed with no problem." Puzzanghera informed the officer that he was an outpatient at VAMC and had recently received a shot of Prolixin. In fact, Puzzanghera had received this shot approximately four hours prior to the accident.

Magee filed a complaint against the United States under the FTCA in which he alleged that the VA negligently allowed or enabled Puzzanghera to qualify for and obtain a driver's license while on Prolixin, negligently failed to warn Puzzanghera of the side effects of Prolixin, negligently failed to properly monitor and supervise Puzzanghera's Prolixin treatment, and negligently "fail[ed] in other respects that will be shown at trial." According to Magee, the VA's negligence caused his injuries. The district court granted summary judgment in favor of the United States on all of Magee's allegations. This appeal followed.

Standard of Review

We review the award of summary judgment de novo. See Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.1996). Summary judgment is appropriate in the absence of a genuine issue of material fact, when the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A fact is material when it has the potential to affect the outcome of the suit. See J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1250-51 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 81, 136 L.Ed.2d 39 (1996). Neither party may rely on conclusory allegations or unsubstantiated denials, but must identify specific facts derived from the pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate either the existence or absence of an issue of fact. See Fed.R.Civ.P. 56(c) & (e). The district court's analysis does not bind us. See Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991). Instead, we may affirm or reverse on any independently sufficient ground. See id.

Discussion

The FTCA vests federal district courts with jurisdiction over claims against the United States for damages caused by

the negligent or wrongful act or omission of any employee of the Government while acting within 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). Fourteen statutory exceptions limit this otherwise broad waiver of sovereign immunity. See 28 U.S.C. § 2680. To evaluate a claim brought pursuant to the FTCA, therefore, we must first determine whether an exception precludes the claim, and, if not, whether a private actor in the state where the conduct occurred would be liable to the plaintiff under the circumstances. We conclude that the discretionary function exception to the FTCA bars Magee's claim with respect to the VA's actions regarding Puzzanghera's driver's license. 1 We also conclude that Massachusetts statutory law precludes his claims of negligent treatment.

A. The Letter

As indicated, several exceptions limit the breadth of the government's potential liability under the FTCA. One, the discretionary function exception, operates to deprive a district court of jurisdiction over

[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.

28 U.S.C. § 2680(a); see Kelly v. United States, 924 F.2d 355, 360 (1st Cir.1991) ("When a claim is covered by the discretionary function exception, it must be dismissed for lack of subject matter jurisdiction.").

Though not abundantly clear from the statutory language, ample authority guides our determination of whether the discretionary function exception serves to bar a claim against the government. See, e.g., United States v. Gaubert, 499 U.S. 315, 322-25, 111 S.Ct. 1267, 1273-75, 113 L.Ed.2d 335 (1991); Berkovitz v. U.S., 486 U.S. 531, 536-39, 108 S.Ct. 1954, 1958-60, 100 L.Ed.2d 531 (1988); Attallah v. United States, 955 F.2d 776, 782-83 (1st Cir.1992); Irving v. United States, 909 F.2d 598, 600-03 (1st Cir.1990). First, we must determine whether the conduct in question was discretionary in nature. See Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273; Attallah, 955 F.2d at 783. If the conduct was discretionary in nature, we must then consider whether it "[was] of the kind that the discretionary function exception was designed to shield." Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273 (internal quotation and citation omitted); see Attallah, 955 F.2d at 783.

The discretionary nature of governmental conduct depends on whether that conduct involved an element of judgment or choice. See Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. We evaluate the nature of the conduct rather than the status of the actor to determine " 'whether the action is a matter of choice for the acting employee.' " Attallah, 955 F.2d at 783 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958). An action, for example, does not involve an element of choice "if a federal statute, regulation or policy specifically prescribes a course of action for an employer to follow, because [t]he employer has no rightful option but to adhere to the directive." Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (internal quotation and citation omitted).

The language of VAMC's Veterans Driver Evaluation Program contemplates a series of steps VA staff must undertake upon deciding to assist a veteran in obtaining a driver's license. The program, however, cannot be characterized as requiring a particularized course of conduct for the VAMC staff. See, e.g., Kelly, 924 F.2d at 360-61 (interweaving of "imperatives with weaker, precatory verbs and generalities" may be more characteristic of discretion than of mandatory directives). Within those steps, the program leaves broad discretion to VA psychologists in their evaluation of the patient and their ultimate decision whether to write to the RMV on the patient's behalf. The program also grants broad discretion to treating physicians in deciding whether to refer interested patients to a...

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