Buchanan v. U.S.

• Decision Date: 26 October 1990
• Docket Number: No. 90-4288,90-4288
• Citation: 915 F.2d 969
• Parties: Marion C. BUCHANAN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 969

915 F.2d 969

Marion C. BUCHANAN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.

No. 90-4288

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1990.

Rehearing and Rehearing En Banc

Denied Dec. 5, 1990.

Karl J. Koch, Baton Rouge, La., for plaintiffs-appellants.

William J. Flanagan, Asst. U.S. Atty., Shreveport, La., Joseph S. Cage, Jr., U.S. Atty., Thomas B. Thompson, Asst. U.S. Atty., Lafayette, La., John A. Broadwell, Asst. U.S. Atty., Shreveport, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, GARWOOD, and DUHE, Circuit Judges.

DUHE, Circuit Judge.

Federal prisoners who were held hostage by Cuban detainees during a prison uprising appeal the dismissal of their suit against the United States for damages under the Federal Tort Claims Act (FTCA). The district court held that the discretionary function exception to the FTCA bars the prisoners' claims. We affirm.

In 1987 the Federal Detention Center at Oakdale, Louisiana was a low-to-medium security facility with open, dormitory-style housing and no segregation unit. It housed about 1,200 Cuban detainees who had entered the United States in the Mariel boatlift. These Cuban nationals remained in federal custody pending review of their immigration status. Seventy American prisoners assigned to a work detail were also at the Oakdale facility.

On November 20, 1987, the State Department and Cuba reinstated a 1984 repatriation agreement that would possibly result in the return of many detainees to Cuba. The warden at the Oakdale facility learned of the repatriation agreement just hours before the first news reports of the agreement were broadcast. The warden and his staff thus had little time to prepare the detainees for the announcement or to dispel their fears.

After learning of the agreement, the warden conferred with his staff to discuss plans for announcing the agreement within the facility and for containing the potential unrest among detainees. To avoid inflaming an already volatile situation, the staff made a conscious decision to maintain the appearance of normal operations while quietly preparing to control any disruptive behavior.

Bilingual prison officials circulated among the detainees to inform them of the announced agreement. Their reactions were mixed; some voiced concern and criticism but many became sullen and quiet. The warden doubled or tripled evening shift posts and assigned extra staff members to perimeter patrol.

That evening in the dining room, an intoxicated detainee began overturning trays and throwing food. Many other detainees then joined in the fracas by throwing trays, dishes, and food. The staff responded to the emergency by escorting the detainees to their housing units. When the warden learned of the disturbance, he returned immediately to the institution. He observed that cleanup was underway and that the evening meal had resumed.

The next day, after failing in a mass escape attempt, the detainees gained control of the facility. They initially took thirty-six hostages, including American prisoners and staff members. In the nine days that followed, the detainees destroyed many of the facility's buildings and subjected the hostages to intense psychological pressure by threatening to kill them if the government launched any rescue attempts. The detainees, however, provided adequate physical care and protected the hostages from the most violent detainees.

The government negotiated with the detainees throughout the nine-day ordeal. It eventually achieved its two paramount goals: to ensure the safe release of the hostages and to return all detainees to the custody of prison officials.

The American prisoners now allege that the United States is liable to them under the FTCA for psychological harassment and physical abuse suffered during the prison uprising. They contend that prison officials were grossly negligent in failing to provide them with adequate protection from the Cuban detainees and in failing to prevent the uprising after receiving clear warnings of detainee unrest.

Discretionary Function Exception

Whether the district court lacked jurisdiction to consider the government's conduct in this case is a question of law, subject to de novo review by this Court. Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987), cert. denied, 487 U.S. 1204, 108 S.Ct. 2845, 101 L.Ed.2d 882 (1988); see Windfield v. Groen Div., Dover Corp., 890 F.2d 764, 766 (5th Cir.1989). If the government's conduct falls within the discretionary function exception to the FTCA, then the district court properly dismissed the case for lack of subject matter jurisdiction.

The discretionary function exception preserves governmental immunity from suit under the FTCA for

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. Sec. 2680(a) (1982) (emphasis added). See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808-09, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660, 671 (1984).

This subsection contains two clauses beginning with "based upon" and separated by the disjunctive "or." These clauses set forth two separate exceptions to the FTCA. See Lively v. United States, 870 F.2d 296, 297 (5th Cir.1989). The first clause, exempting actions mandated by statute or regulation, applies only if the actor has exercised due care. The second clause, exempting actions based on a discretionary function, contains no due care requirement.

This exception reflects a congressional intent to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765, 81 L.Ed.2d at 674-75. This congressional intent applies to both clauses of the subsection, because the first clause exempts from judicial scrutiny the decisions of legislative bodies and the second clause exempts the decisions of government employees at every level, acting in the exercise of their discretion.

The American prisoners contend that the first clause of the subsection does not bar their claims because a federal statute establishes for prison officials a mandatory duty of due care that the Oakdale officials have breached. The statute requires the exercise of ordinary diligence to keep prisoners safe and free from harm. See 18 U.S.C. Sec. 4042 (1988). ¹

Yet even if we assume, arguendo, that prison officials failed to exercise due care, the second clause of the subsection could still provide the government with immunity against suit. The question we must answer, then, is not whether the prison officials acted with due care but whether their conduct was the result of the performance of a discretionary function. See Lively, 870 F.2d at 298.

"[I]t is unnecessary--and indeed impossible--to define with precision every contour of the discretionary function exception." Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764, 81 L.Ed.2d at 674. Yet the Supreme Court has provided guidance for determining whether the acts of a government employee are shielded from liability.

"[T]he nature of the conduct, rather than...