USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 97-1651
SINFOROSO NIEVES-RODRIGUEZ, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Israel Roldan Gonzalez on brief for appellants.
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Guillermo Gil, United States Attorney, and Fidel A. Sevillano Del
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Rio, Assistant United States Attorney, on brief for appellee.
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October 16, 1997
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Per Curiam. We have reviewed the briefs submitted by
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the parties and the record on appeal, and we affirm.
Appellants challenge the lower court's determination that the
actions of the government in this case were protected by the
discretionary function exception to the Federal Tort Claims
Act, 28 U.S.C. 2674 & 2680(a).
A decision constitutes a discretionary function where 1)
the action involves an element of choice, and 2) the action
involves the kind of judgment Congress intended to protect.
Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).
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Congress intended to prevent courts from second-guessing
social, economic or political policy decisions made by the
other two branches of government. United States v. S.A.
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Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
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U.S. 797, 814 (1984). We agree that the decision to erect a
steel pole barrier on the perimeter of Punta Borinquen Air
Base, so as to prevent entry of automobiles onto the base in
accidents, was the exercise of a discretionary function.
Certainly no statute or regulation required or prohibited
placement of the barrier, so an element of choice was
involved. Berkovitz, 486 U.S. at 536. Further, the decision
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was the type of policy decision Congress intended to immunize
from suit. Before the barrier was erected, cars involved in
accidents in this spot would commonly go through the chain
link fence surrounding the base. The barrier prevented
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unauthorized cars from entering the secured base. The courts
have no place second-guessing military commanders' decisions
regarding how best to secure military bases. Varig Airlines,
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467 U.S. at 814. This court has held that such decisions are
protected under the discretionary function exception, even
where they involve a "'trade-off between greater safety and
greater combat effectiveness.'" Ayer v. United States, 902
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F.2d 1038, 1044 (1st Cir. 1990) (quoting Boyle v. United
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Technologies Corp., 487 U.S. 500, 511 (1988)).
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Appellants' second claim alleges the government acted
negligently in failing to provide adequate warning of the
barrier; they challenge the lower court's ruling that that
decision also was protected by the discretionary function
exception. We express no opinion on this issue, since the
lower court alternatively found that even if the decision was
not protected under 28 U.S.C. 2680(a), the claim failed on
the merits since the government acted reasonably in providing
the amount and type of warning given.1
1
Affirmed. See Loc. R. 27.1.
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1The Magistrate's Opinion states: "The government, the
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defendant herein, has provided to all those traveling on
Hangar Road proper and reasonable notice and warnings, within
their means." Mag. Opin. at 27.
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