Can a tort action be brought against the Administrator of the Department of Health and Social Security for allegedly misusing the discretionary act?

28 U.S.C. Sec. 2680(a). Thus, if the Administrator can show either that he was acting under a statute or regulation and was exercising due care, or that he was performing a discretionary function, however negligently, a remedy in tort is not available against him. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986) (discretionary act exception applies regardless of whether the discretion was abused), cert. denied, 108 S.Ct. 163 (1987).

If the action of the Administrator at issue here is his promulgation of the circular, then the discretionary act exception fully impedes a suit against him. Dalehite v. United States, 346 U.S. 15, 43 (1953) (adoption of regulations by a government agency is "classically within the exception"

Page 582