ALARCON, Circuit Judge:
Plaintiff Norma Denton appeals from the district court's denial of her motion for summary judgment and grant of defendant's motion for summary judgment. We affirm.
This case chronicles the Kafkaesque plight of a hapless citizen whose claims to widow's benefits regrettably must be denied despite clear evidence that she has been the victim of bureaucratic error.
Appellant is the widow of Lieutenant Colonel Charles K. Denton. In 1962, Lt. Col. Denton transferred to the Retired Reserve of the United States Army, after having completed 28 years of military service with the National Guard. Had he lived, Lt. Col. Denton would have been eligible for retirement pay at age 60; Lt. Col. Denton died in 1975 at age 57. His widow was not entitled to any survivorship benefits because Lt. Col. Denton died before he was eligible to draw retirement pay.
In 1974, Congress amended the Veterans' Insurance Act to extend coverage under Servicemen's Group Life Insurance (SGLI) to individuals such as Lt. Col. Denton, who were members of the Retired Reserve of a uniformed service, who had completed at least 20 years of creditable service, but who had not yet received the first increment of
Following enactment of the Veterans' Insurance Act of 1974, the Army attempted to notify all Retired Reservists eligible under the amended SGLI. In excess of 43,000 retired reservists were initially identified from the computer files as potentially eligible. The Army further refined the list by a review of the personnel files. The ultimate mailing was sent to more than 31,000 Retired Reservists. In addition, the Department of Defense and the Veterans' Administration distributed information about SGLI to various military organizations, veterans' organizations and Veterans' Administration regional offices.
Lt. Col. Denton did not receive the Army mailing because the data maintained in his computer file erroneously indicated that he was already a recipient of retired pay, and was therefore ineligible for SGLI coverage.
Following her husband's death, appellant filed suit against the United States in the Court of Claims to recover the $20,000 insurance proceeds to which she would have been entitled had her husband applied for full SGLI coverage and named her as beneficiary. She agreed to a set-off for the premiums her husband would have paid. The Court of Claims dismissed the suit for lack of subject matter jurisdiction. Thereafter, the Court of Claims, pursuant to 28 U.S.C. § 1506 (1977), transferred appellant's suit to the District Court for the Western District of Washington.
In the district court, appellant contended that the United States was liable for the $20,000 because the government had breached a statutory duty to notify her late husband of his SGLI eligibility. In the alternative, appellant contended that even if the United States had no statutory duty to notify her husband, it had voluntarily undertaken to notify Retired Reservists of their eligibility, and was therefore liable for any negligence in carrying out the task.
The district court found that Lt. Col. Denton would have purchased full SGLI coverage had he been aware of his eligibility. The court held, however, that the United States had no statutory duty to notify Lt. Col. Denton of his insurance eligibility, as well as no duty to perform the voluntarily undertaken task of notification with due care. Accordingly, the court dismissed appellant's suit for failure to states a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6).
Both parties in the action below proceeded upon the assumption that the district court had jurisdiction under 38 U.S.C. § 775
We hold that jurisdiction under this statute was improper because the government's breach of duty, if any, was not the kind for which the United States is amenable to suit under 38 U.S.C. § 775.
Neither the Veterans' Insurance Act of 1974 nor the regulations promulgated under it (38 C.F.R. § 9.1 et seq. (1979)) sets forth an explicit duty to notify Retired Reservists of their SGLI eligibility. Nor do we believe that the legislative history can plausibly be read as imposing such a duty on the United States.
The United States' consent to be sued under § 775 extends only to actions alleging breach of an explicit or implicit duty under the SGLI subchapter. Nothing in the language of the SGLI subchapter nor in the legislative history supports appellant's contention that the statute imposed a duty of notification on the United States. Therefore, appellant's claim was not "founded upon" the SGLI subchapter and jurisdiction under § 775 was improper.
We emphasize that we do not hold that the United States had no duty to notify Lt. Col. Denton of his SGLI eligibility or that the United States, once having undertaken to notify Retired Reservists of their SGLI eligibility, cannot be held liable on a duty voluntarily undertaken theory. We need not decide those questions,
Many strong policy arguments could be made for imposing a duty on the United States in this case.
(a) Any policy of insurance ... shall automatically insure against death —
A Retired Reservist is not covered under SGLI until he submits the initial premium. 38 U.S.C. § 768(a)(5) (1977); 38 C.F.R. § 9.3(a) (1979).
Since the United States does not ordinarily bear the responsibility of notifying classes of citizens of the existence of legislation that might affect them — outside of the public record of the legislative process and the publication of the United States Code — we believe that if Congress wished to impose such a duty, it would have done so in more explicit terms. As it reads, Johnson's letter evidences little more than an acknowledgement that the VA had no independent information about the identity of individuals assigned to the Ready Reserve.
Another line of cases, litigated under the Federal Tort Claims Act, might support appellant's contention that even if the government had no duty to provide notification, liability could nevertheless be predicated on the fact that the government voluntarily assumed the duty, and therefore had an obligation to perform it with due care. See, e.g., Quinones v. United States, 492 F.2d 1269, 1278 (3d Cir. 1974); Gibson v. United States, 457 F.2d 1391, 1394 (3d Cir. 1972); Rogers v. United States, 397 F.2d 12, 14 (4th Cir. 1968). These cases are grounded on the logic that "[w]hen an agency of the United States voluntarily undertakes a task, it can be held to have accepted the duty of performing that task with due care." Rogers v. United States, 397 F.2d at 14. Cf. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (the Coast Guard had no obligation to establish a particular light house, but if it did, it had a duty to use due care to keep it working).
The Veterans' Insurance Act of 1974 was passed precisely to aid Retired Reservists, such as appellant's decedent, whose families would receive no survivorship benefits if the Reservist died before reaching age 60. The Senate Report on the Act noted that enlistments and retention rates in this country's military were alarmingly low, and that such benefits might be an inducement for military service.  U.S.Code Cong. & Ad.News 3124-3125.
Furthermore, the entire purpose of tort liability is risk allocation. See Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499 (1961). In a system as large as the United States Army, clerical errors are bound to occur. The issue is whether the risk should be spread among all users of the system (here, the citizenry who receive the benefit of military protection and whose tax dollars would pay for any sum recovered by appellant), or whether the risk should be placed uniquely upon the person unfortunate enough to be the victim of a bureaucratic error.
It is undisputed in this case that appellant's decedent did not receive notice of his SGLI eligibility because the Army had miscoded his computer file. In light of the importance of the military in American life, the special circumstances of military service, the legislative purpose of the SGLI amendments, and the tort policy of risk allocation, it might be unduly harsh to leave appellant uncompensated if she had properly filed suit under the Federal Tort Claims Act.