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LANE v. UNITED STATES

March 12, 1996

WELDON V. LANE, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: BRODY

 Brody, J.

 March 12th, 1996

 Defendant, the United States, has filed a motion to dismiss the complaint in this action, which was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). For reasons discussed below, I will grant the motion.

 BACKGROUND

 Plaintiff, Weldon V. Lane ("Lane"), is a World War II veteran who was captured by the German Army in Belgium in December of 1944. He was held by the Germans as a prisoner of war ("POW") for about four months, after which he managed to escape and rejoin the U.S. Army. During his captivity, Lane was forced into hard labor, starved, and physically abused, and he lost one-third of his total body weight. When he applied for Veterans' Benefits in 1948, the effects of malnutrition were still evident. Lane suffered heart attacks in 1988 and 1989. Following heart bypass surgery, he learned that many of the conditions to which he was subjected as a prisoner of war could have resulted in heart disease or damage. He reapplied for veteran's benefits in 1990, claiming his ischemic heart disease was a service-connected disability, attributable to his prisoner-of-war experience. The Department of Veterans Affairs ("DVA") arranged for a medical examination, determined that his service-connected residual disability was less than 10%, and denied him benefits.

 Plaintiff claims the DVA had failed to notify him some years earlier of changes in benefits provided by the Former Prisoner of War Benefits Act of 1981 ("POW Act"), although the act required such notification. It states:

 
Sec. 6. (a) Not later than 90 days after the date of the enactment of this Act and at appropriate times thereafter, the Administrator shall, to the maximum extent feasible and in order to carry out the requirements of the veterans outreach services program under subchapter IV of chapter 3 of title 38, United States Code, seek out former prisoners of war and provide them with information regarding applicable changes in the law, regulations, policies, guidelines, or other directives affecting the benefits and services to which former prisoners of war are entitled under such title by virtue of the amendments made by this Act.

 POW Act of 1981, Pub. L. # 97-37, 95 Stat. 935. (emphases added). Plaintiff alleges that the DVA's only response to this directive was to publish pamphlets that listed conditions covered, including those that allegedly led to plaintiff's heart disease, and place them on informational display racks at various DVA offices. The pamphlet was not sent to former POW's who, like himself, were known to the DVA as having had medical problems resulting from their captivity. In addition, the pamphlet failed explicitly to address the changes in the laws, regulations, policies, guidelines, and other directives. Plaintiff contends that the Department's failure to seek him out and notify him individually of the changes in the law was in violation of the POW Act, was willful or negligent misconduct or deliberate indifference, and was the legal cause of physical and psychological illness and of consequent injury he has suffered for many years.

 DISCUSSION

 The Federal Tort Claims Act

 The Federal Tort Claims Act ("FTCA") waives the government's sovereign immunity for injuries caused by tortious government action. It provides that the United States "shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. There are, however, exceptions to the government's waiver of sovereign immunity, and one is the performance of discretionary functions or duties. Title 28 U.S.C. § 2680 provides in pertinent part:

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

 The issue on which this motion hinges is whether the DVA's notification to POW's as directed by the POW Act falls within the discretionary function exception to the FTCA. The Third Circuit has treated the exception as jurisdictional. Griffin v. U. S., 500 F.2d 1059, 1064 (3d Cir. 1974); Gibson v. U. S., 457 F.2d 1391, 1392 n.1 (3d Cir. 1972); see also Blessing, 447 F. Supp. 1160, 1167 n.6. Therefore, if the challenged activity in this case comes within the exception, the case must be dismissed.

 The discretionary function exception to the FTCA "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984). The Supreme Court set out the broad outlines of the discretionary function in Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). It stated:

 
The 'discretion' protected by the section is not that of the judge -- a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to ...

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