Industria Panificadora, S.A. v. U.S., 91-5147

• Decision Date: 06 March 1992
• Docket Number: No. 91-5147,91-5147
• Citation: 957 F.2d 886
• Parties: INDUSTRIA PANIFICADORA, S.A., et al., Appellants, v. UNITED STATES of America, Appellee, Lindo Marduro, S.A., et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 886

957 F.2d 886

294 U.S.App.D.C. 137

INDUSTRIA PANIFICADORA, S.A., et al., Appellants, v. UNITED STATES of America, Appellee Lindo Marduro, S.A., et al., Intervenors.

No. 91-5147.

United States Court of Appeals,

District of Columbia Circuit.

March 6, 1992.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-01694).

Douglas B. McFadden and James A. Kline, Washington, D.C., for appellants.

Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence, and Thomas S. Rees, Asst. U.S. Attys., Washington, D.C., for appellee.

Allan I. Mendelsohn and Marvin L. Szymkowicz, Washington, D.C., for intervenors.

Before MIKVA, Chief Judge, and RUTH BADER GINSBURG and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed PER CURIAM.

ON MOTION FOR SUMMARY AFFIRMANCE

PER CURIAM:

Appellants, Panamanian business enterprises, allege that they suffered property damage during looting that occurred in the wake of the invasion of Panama by United States armed forces in December 1989. In 1990, after exhausting their administrative remedies, appellants brought this action in the United States District Court for the District of Columbia under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350. The complaint charges that appellants' losses were caused by the negligence of U.S. officials who failed to provide adequate police protection during and after the invasion. The district court dismissed the action, holding that the challenged decisions and conduct fell within the "discretionary function" exception to the FTCA, and that the ATCA did not provide an independent waiver of sovereign immunity. Alternatively, the district court ruled that the action presented a nonjusticiable political question. See Industria Panificadora, S.A. v. United States, 763 F.Supp. 1154 (D.D.C.1991). The district court, we hold, correctly applied the FTCA's discretionary function exception. We affirm the district court's order on that ground, and express no opinion on that court's alternative, "political question" rationale.

The discretionary function exception, 28 U.S.C. § 2680(a), shields from tort liability discretionary governmental decisions and actions grounded on considerations of social, economic or political policy, whether at the "planning" or "operational" level. See United States v. Gaubert, --- U.S. ----, 111 S.Ct. 1267, 1273-75, 113 L.Ed.2d 335 (1991); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813-14, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984). The district court correctly concluded, see 763 F.Supp. at 1156-59, that the decisions appellants question concern allocation of military and law enforcement resources, and are therefore sheltered by the exception. Cf. Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1198 (D.C.Cir.1986) (decisions by federal officials deploying personnel in response to a hostage situation); Monarch Ins. Co. v. District of Columbia, 353 F.Supp. 1249, 1256-59 (D.D.C.1973) (planning and execution of riot control activities by the National Guard), aff'd, 497 F.2d 684 (D.C.Cir.) (table), cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974).

Appellants assert that the United States was under a mandatory duty to provide police protection, imposed by Article 43 of the Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539. ^* Even if Article 43 applied to U.S. forces in Panama, however, the discretionary function exception would bar recovery, for Article 43 prescribes no specific course of conduct that the government must follow to avert tort liability. Cf. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (...