former prisoners of war and notify them of regulatory changes. He argues that, "because the DVA was directed specifically to perform a function by statute, namely to seek out the former POWs, there was no element of judgment or choice involved, thus, there was no discretionary function." (Plaintiff's memorandum in opposition to defendant's motion to dismiss at 7.)
The statute provides that the administrator "shall, to the maximum extent feasible . . ., seek out former prisoners of war and provide them with information regarding applicable changes in the law . . ." Plaintiff contends the language "seek out . . . and provide . . . with information" is a specific and mandatory directive for the DVA to contact former POWs individually by sending or mailing them the information. The language of the statute does not support that interpretation. By qualifying "seek out . . . and provide" by "to the maximum extent feasible," Congress explicitly left it to the DVA to decide the manner and means of carrying out its directive.
Nor does the legislative history of the POW Act support the view that Congress intended to direct the DVA to carry out the task of informing former POWs in a specific manner. The House of Representatives bill was the one that was passed, and the House Report, No. 97-28, set out separate recommendations for identifying the former POWs from VA records and for publicizing the changes. However, it failed to recommend that an effort be made to contact the former POWs individually; instead, it recommended other means of publicizing the benefits of the POW act.
In the final bill neither recommendation was included. Congress was evidently more concerned with substantive changes in the law than with the administrative details of publicizing the benefits. Those were left to the administrator "to the maximum extent feasible."
The statute could have specified that the administrator shall make an effort to contact former POWs individually, but it did not; nor did it prescribe any specific course of action, as did the statute in Berkovitz, which specified that licenses could be issued "only upon a showing that the establishment and the products . . . meet standards . . . prescribed in regulations . . . ." 42 U.S.C. § 262(d). This is not a case like Berkovitz, where the government action violated "a specific statutory and regulatory directive." Berkovitz, 486 U.S. at 542-43. The statute in this case provides no guidance as to how the administrator is to "seek out . . . and provide . . . with information" the former POWs, nor does it provide any standards for compliance with this directive as it did in Berkovitz. It merely says that the administrator is to carry out the task "to the maximum extent feasible." That language directs the administrator to exercise his judgment in deciding how to get the job done.
This case is much more like Powers, in which the statute provided that the director of FEMA "shall . . . take such action as may be necessary in order to make information and data available to the public." 42 U.S.C. § 4020. In both cases, Congress "has given the [administrator] discretion to decide when and how best to make information and data available." Powers, 996 F.2d at 1125. In both cases, the administrator "must make these decisions and act without reliance upon a fixed or readily ascertainable standard." Id. In Powers, the court held that the administrator's decision "clearly involves an element of judgment or choice and therefore involves the exercise of discretion." Id. The challenged action in this case similarly involves the exercise of choice or judgment in deciding how best to inform former POWs of the changes in the law within the limits of feasibility.
Plaintiff contends that the phrase "seek out" required defendant to do more than it did. He argues:
No reasonable person would agree with the Defendant that publishing a pamphlet which was not even sent to known individuals affected, and which failed even to mention the specific regulatory changes, constitutes "seeking out" former POWs. No reasonable former POW who had undergone the terror and deprivation of captivity would agree with the DVA that publishing a pamphlet for display purposes was a reasonable response to the congressional mandate.
Plaintiff's memorandum at 7. Even if plaintiff is correct that the DVA's response was unreasonable, it has not violated the statute. If Congress allowed the administrator to exercise his judgment in to deciding how to seek out and inform former POWs, and I hold that it did, the first prong of the discretionary function test is satisfied even if the administrator abuses his discretion or fails to exercise it. Section 2680 bars any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused." 28 U.S.C. § 2690. I conclude that the challenged action of the DVA is a discretionary action satisfying the first prong of the discretionary function test.
Because the first prong of the test has been satisfied, we must consider the second prong: whether the discretion exercised in this case was "of the kind that the discretionary exception was designed to shield." Gaubert, 499 U.S. at 321. As the Gaubert Court explained, the exception "protects only governmental actions and decisions based on considerations of public policy." Id. at 323 (quoting Berkovitz, 486 U.S. at 537). In this case, Congress directed the administrator to make policy decisions when it stated that the administrator shall seek out and inform former POWs "to the maximum extent feasible." Feasibility contemplates myriad practical considerations and decisions. As the Supreme Court stated in Empresa, such decisions "require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding." Empresa, 467 U.S. at 820-21. To say that the non-specific language of the statute compelled the DVA to make greater efforts than it did to contact former POW's would be to engage in just the kind of "second-guessing" of political, social, and economic judgments that the discretionary exception was designed to avoid.
Plaintiff tries to distinguish Powers with respect to the second prong of the test on the ground that the claim in that case "affected the population as a whole," whereas in this case, "Congress did not intend for the very people that the statute applied to be barred from recovery by the discretionary function exception or they would not have bothered to enact the statute." (Plaintiff's memorandum at 8.) I do not see a meaningful distinction based on the size of the population affected. In each case, there is a target group meant to benefit from the act; while former POWs are more readily identifiable that those affected by floods, in each case there are more and less effective, and more and less expensive, ways to reach the group affected by the statute. In this case, as in Powers, It was not an intent to limit or bar recovery that led Congress to defer to the discretion of the agency in administering the program it mandated. Rather, it was the agency's expertise, its knowledge, and its consequent ability to make the numerous policy decisions necessary to implement the program. In using the qualifying language "to the maximum extent feasible," Congress directed the DVA to decide how to balance the task of notifying former POWs against its other obligations. I conclude that the discretion exercised in this case was "of the kind that the discretionary exception was designed to shield." Gaubert, 499 U.S. at 321. It therefore satisfies the second prong of the discretionary function test.
Because the challenged action in this case falls within the discretionary function exception to the FTCA, this court lacks jurisdiction over the case and it must be dismissed. It is very unfortunate that plaintiff did not learn earlier of the increased benefits to which he was entitled as a former POW. However, the DVA's decision as to how to carry out its mandate under the POW Act is the sort of discretionary function that Congress intended to shield from private tort actions when it enacted section 2680 (a) of the Federal Tort Claims Act.
An appropriate order follows.
AND NOW, this 12th day of March, 1996, upon consideration of the motion of defendant, the United States of America, to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), and the response of plaintiff, Weldon V. Lane, thereto, it is hereby ORDERED that the defendant's motion is GRANTED and the complaint is dismissed.
ANITA B. BRODY, J.