only when absolutely necessary," and at the same time to "minimize the chances that severely disturbed veterans will injure or kill themselves or others." The existence of guidelines establishing such broad ranging concerns does not inexorably lead to the conclusion that patient release decisions are dictated by policy rather than medical judgment, and the defendant fails to show that on February 16, 1985 the VA physician who released Dillman acted out of the dictates of this policy rather by his own medical judgment.
The scope of the discretionary function exception was never, in any event, meant to be so broad as to cover all decisions made under an umbrella of policy. The Supreme Court in Berkovitz rejected the government's contention that "the [discretionary function] exception precludes liability for any and all acts arising out of regulatory programs of federal agencies." Berkovitz, 108 S. Ct. at 1959-60. If all federal employee acts involving some judgment and performed under some policy were to be viewed as discretionary policy-making, then the discretionary function exception would overtake both the rule and the purpose of the FTCA, and the second prong of the Berkovitz test would be meaningless. Few employee acts are so strictly controlled by specific policy instructions as to be void of any choice or judgment, while at the same time few employees operate independently of some overall policy structure.
Having again failed the second prong of the Berkovitz test, the government is not entitled to sovereign immunity from liability under the discretionary function exception of the FTCA through the vehicle of summary judgment. Accordingly, the merits of the wrongful death claim under state law must be reached.
B. Plaintiff's Motion
In addition to failing their requirements under local Rule 12(l), plaintiffs also failed to adequately support their motion for summary judgment concerning liability. In their cross-motion for summary judgment plaintiffs claim that the government conceded to negligence and therefore only damages remain uncontested. They offer no additional evidentiary support for any finding of negligence on the part of the releasing physician, and merely reassert this court's conclusion in denying defendant's motion to dismiss on the issue of immunity.
This court agrees with defendant that nowhere does a concession to negligence by the government appear in its supporting memorandum and, therefore, that the issue of liability remains in dispute. Accordingly, plaintiffs' cross-motion for summary judgment is also denied.
Both parties' motions for summary judgment are denied. The government is not benefited by immunity from prosecution under the discretionary function exception of the FTCA, and the issue of whether the government acted wrongfully in releasing Dillman is left for resolution at trial.
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