Magee v. United States

• Court: Court of Appeals for the First Circuit
• Decided: July 31, 1997
• Docket: 96-2357
• Status: Published

Opinion

USCA1 Opinion

No. 96-2357


                                   WILLIAM MAGEE,


                                Plaintiff, Appellant,


                                         v.


                              UNITED STATES OF AMERICA,


                                Defendant, Appellee.


                                ____________________


                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                    [Hon. Nancy J. Gertner, U.S. District Judge]


                                ____________________


                                       Before


                           Stahl and Lynch, Circuit Judges,

                         and O'Toole*, U.S. District Judge.


                                ____________________


            Francis J. Caruso, III
                                  with whom 
                                            Paul J. Gillespie
                                                              and 
                                                                  Gillespie &

       Associates were on brief for appellant.

            Julie 
                  S. 
                     Schrager, Assistant United States Attorney, with whom

       Donald K. Stern, United States Attorney, was on brief for appellee.


                                ____________________


                                    July 31, 1997

                                ____________________


       *Of the District of Massachusetts, sitting by designation.



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. S 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


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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


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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.


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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, 117 S. Ct. 81 (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


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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. S 1346(b). Fourteen statutory exceptions limit this


            otherwise broad waiver of sovereign immunity. See 28 U.S.C. S


            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.  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 


1.  The district court analyzed Magee's complaint in negligence

            terms, holding that Mass. Gen. Laws ch. 123, S 36B precluded

            some of Magee's claims and that he failed to establish the

            elements of common law negligence on his remaining claims. In

            arriving at our conclusion we depart from the reasoning of the

            district court in determining that the discretionary function

            exception to the FTCA bars Magee's claims arising out of the

            VA's efforts on behalf of Puzzanghera's driver's license. We

            reiterate, however, that in evaluating an appeal from the grant

            of summary judgment, we may affirm for any independently

            sufficient ground supported by the record.  See Mesnick, 950

            F.2d at 22. 


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[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. S 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 (1991); United 
                                                States v. Berkovitz, 486


            U.S. 531, 536-39 (1988); Attallah v. United 
                                                        States, 955 F.2d


            776, 782-83 (1st Cir. 1991); 
                                        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; 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


            (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. We evaluate the


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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). 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 (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 psychologist for evaluation.


                      The uncontroverted deposition of Dr. Robert Avey, the


            VA counselling psychologist who wrote on behalf of Puzzanghera,


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underscores the discretionary nature of the process. Dr. Avey


            testified that his evaluation protocol included reviews of


            patient treatment histories, interviews with patients and


            consultations with other professionals such as physicians or


            social workers if necessary, all aimed at gauging the propriety


            of facilitating the restoration of a given patient's driving


            privileges. Thus, we are satisfied that VAMC's program is


            sufficiently discretionary to meet the first inquiry of the


            discretionary function exception. See 
                                                 Gaubert, 499 U.S. at 322


            (indicating that conduct involving element of choice or


            judgment is discretionary). 


                      Having determined that the action was discretionary,


            we turn to the second inquiry, whether the decision of VA


            doctors to assist Puzzanghera in applying for his driver's


            license was "of the kind that the discretionary function


            exception was designed to shield."   Id. at 322-23 (internal


            quotation and citation omitted). The exception does not serve


            to protect all discretionary actions of governmental employees.


            Instead, it "protects only governmental actions and decisions


            based on considerations of public policy."       Id. at 323


            (internal citation omitted). In this way, the exception serves


            its purpose of preventing "judicial second guessing" of


            legislative and administrative decisions grounded in social,


            economic, and political policy through the medium of an action


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in tort.  See Attallah, 955 F.2d at 783; Irving, 909 F.2d at


            600.


                      As the Supreme Court has indicated, "it will most


            often be true that the general aims and policies of the


            controlling [program] will be evident from its text." 
                                                                 Gaubert,


            499 U.S. at 324. A government statute or program that allows


            the government actor discretion creates a presumption that the


            isolated discretionary act reflects the same considerations


            which led to promulgation of the program.      See id. The


            exception is not reserved solely for planning level decisions


            establishing programs.  See id. at 323. The exception also


            protects "the actions of Government agents involving the


            necessary element of choice and grounded in the social,


            economic or political goals. . . ."    Id. In short, "the


            discretionary function exception insulates the Government from


            liability if the action challenged . . . involves the


            permissible exercise of policy judgment." Berkovitz, 486 U.S.


            at 537. 


                      We view VAMC's decision to assist Puzzanghera in


            obtaining a driver's license as a clear, permissible exercise


            of policy judgment. As we have already stated, the policy


            contemplates significant discretion on the part of the VA staff


            at every step of the process. The Veterans Driver Evaluation


            Program includes a clearly stated policy objective, "to assist


            veterans to apply for driving privileges" in cases where


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driving privileges are likely to enhance the patient's


            rehabilitative prospects. This objective folds neatly into the


            VA's mission of providing a range of care and assistance for


            veterans. A series of judgments leading up to the ultimate


            decision under this program, whether to write to the RMV, all


            involve considerations of veteran rehabilitation.


                      Magee unpersuasively argues that VAMC's assistance to


            Puzzanghera in obtaining a driver's license constituted part of


            his medical treatment. In  Collazo v. United States, 850 F.2d


            1, 3 (1st Cir. 1988), we held that a claim of negligent medical


            treatment by a government actor, unaccompanied by any


            discretionary, policy based conduct, falls outside the


            parameters of the discretionary function exception. We


            distinguished conduct made on purely medical grounds from


            conduct made pursuant to governmental policy, pointing out that


            where "only professional, nongovernmental discretion is at


            issue, the discretionary function exception does not apply."


            Id. at 3 (internal quotation omitted).


                      The decision to write a letter to the RMV on


            Puzzanghera's behalf fell within the parameters of VAMC's


            rehabilitative policy. Puzzanghera, not VAMC physicians,


            initiated the process by asking for a driver's license


            referral. Pursuant to the program, Dr. Avey, a counseling


            psychologist and not Puzzanghera's treating psychiatrist, made


            the ultimate decision to write a letter to the RMV on behalf of


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Puzzanghera. The program creates a general process applicable


            to all patients seeking a license; it did not constitute part


            of Puzzanghera's individualized medical treatment. Puzzanghera


            did not receive his license, for example, to help control his


            schizophrenia. Rather, the decision to write a letter of


            support was made in contemplation of his rehabilitative needs.


                      We conclude that VAMC's efforts on Puzzanghera's


            behalf with respect to the Veterans Driver Evaluation Program


            fall within the discretionary function exception to the FTCA.


            Accordingly, that exception bars the portion of Magee's claim


            that rests on the VA's efforts on behalf of Puzzanghera's


            driver's license. 


B.  The Prolixin


                      Magee also claims that the VA's negligent medical


            treatment of Puzzanghera caused his injuries. Specifically,


            Magee claims that the VA failed to properly monitor and


            supervise Puzzanghera's Prolixin treatment and failed to warn


            him adequately of the adverse side effects he might experience


            as a result of the Prolixin doses. Magee attributes the


2.  We point out that "where the government is performing a

            discretionary function, the fact that the discretion is

            exercised in a negligent manner does not make the discretionary

            function exception to the FTCA inapplicable."  Attallah, 955

            F.2d at 784 n. 13 (citing 
                                     Berkovitz, 486 U.S. at 539). Whether

            VAMC negligently exercised its discretion with respect to

            Puzzanghera's driver's license, therefore, is irrelevant to our

            analysis. 


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accident to that alleged negligent failure to warn Puzzanghera


            and properly supervise his treatment.


                      This claim derives from Puzzanghera's specific


            medical treatment, which as we have indicated, falls outside


            the protection of the discretionary function exception.   See


            Collazo, 850 F.2d at 3. We do not identify, nor does the


            government point us to, any other statutory exception that


            might bar this claim. In the absence of a statutory exception,


            the FTCA imposes liability on the government for conduct of its


            employees within the scope of their 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 conduct occurred. 28 U.S.C. S 1346(b).


            "To identify the applicable rule of substantive law,"


            therefore, "the FTCA directs us to determine the substantive


            law that would apply to 'a private individual under like


            circumstances' in the jurisdiction where the injury occurred."


            In re All Maine Asbestos Litig.
                                          , 772 F.2d 1023, 1027 (1st Cir.


            1985) (quoting  United  
                                   States v.  Muniz, 374 U.S. 150, 153


            (1963)); see Kelly, 924 F.2d at 359. We turn to the law of


            Massachusetts, the situs state, to determine whether Magee can


            hold the government liable in this case.


                      We agree with the district court that Magee failed to


            provide evidence in the record from which a jury could have


            found that the VA's treatment of Puzzanghera caused the


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accident.  See 
                           Borden v. 
                                    Betty Gibson Assoc., Inc.
                                                             , 574 N.E.2d


1020, 1022 (Mass. App. Ct. 1991) (indicating that causation is


            necessary to recovery for negligence). Magee points to the


            Prolixin shot Puzzanghera received four hours prior to the


            accident, the various side effects Puzzanghera experienced as


            a result of the Prolixin, namely restlessness and difficulty


            controlling his tongue, the police officer's notation that


            Puzzanghera appeared slow and deliberate at the scene of the


            accident, Magee's own impression of Puzzanghera at the scene,


            and Puzzanghera's inability to remember the details of the


            accident. 


                      Magee does not, however, explain how any of these


            pieces of evidence, either in isolation or in the aggregate,


            would allow a jury to conclude that the VA's alleged negligent


            treatment of Puzzanghera caused the accident. Nothing in the


            record suggests, for example, that the restlessness or tongue


            control side effects somehow caused Puzzanghera to drive into


            Magee. Nor does the record offer a basis to conclude that the


            police officer's characterization of Puzzanghera related to his


3.  We note that Mass. Gen. Laws ch. 123, S36B would appear to

            bear on the question of whether VAMC had any duty to Magee.

            Given that the Massachusetts Supreme Judicial Court has not yet

            construed S 36B and our own conclusion that the record fails to

            support at least one essential element of negligence, we need

            not determine the applicability of S 36B to this case. 


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treatment at VAMC. In short, Magee lacks any evidence that


would allow a jury to base a conclusion as to causation on


            anything other than speculation.  See id. (indicating that a


            recovery in negligence cannot be based on speculation as to


            causation). 


                                     Conclusion


                      For the foregoing reasons, we affirm the district


            court's disposition of Magee's complaint.


                      Affirmed.  Costs to Appellee.


4.  Magee's expert, Dr. Catherine Larned, points to

            Puzzanghera's medical records and notes that on one occasion

            (June 12, 1990) Puzzanghera appeared "somewhat lethargic" at an

            appointment, and that on another occasion (June 19, 1990)

            Puzzanghera reported that a nap on his lunch break caused him

            to return late to work. The record, however, in no way

            supports even an inference that Puzzanghera was either

            experiencing these indications at the time of the accident, or

            that they were caused in any way by Puzzanghera's treatment at

            VAMC.


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