Nieves-Rodriguez v. United States ( 1997 )


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    [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________


    No. 97-1651


    SINFOROSO NIEVES-RODRIGUEZ, ET AL.,

    Plaintiffs, Appellants,

    v.

    UNITED STATES OF AMERICA,

    Defendant, Appellee.

    ____________________


    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Daniel R. Dominguez, U.S. District Judge] ___________________

    ____________________

    Before

    Selya, Circuit Judge, _____________
    Campbell, Senior Circuit Judge, ____________________
    and Lynch, Circuit Judge. _____________

    ____________________

    Israel Roldan Gonzalez on brief for appellants. ______________________
    Guillermo Gil, United States Attorney, and Fidel A. Sevillano Del _____________ ______________________
    Rio, Assistant United States Attorney, on brief for appellee. ___


    ____________________

    October 16, 1997
    ____________________
















    Per Curiam. We have reviewed the briefs submitted by ___________

    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). ____________________________

    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. _______________________

    Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 ________________________________________________________

    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 _________

    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, ______________

    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 ______________________

    F.2d 1038, 1044 (1st Cir. 1990) (quoting Boyle v. United _______ ________________

    Technologies Corp., 487 U.S. 500, 511 (1988)). __________________

    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. _________ ___








    ____________________

    1The Magistrate's Opinion states: "The government, the 1
    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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