United States v. Faneca

• Decision Date: 01 June 1964
• Docket Number: No. 20906.,20906.
• Citation: 332 F.2d 872
• Parties: UNITED STATES of America et al., Appellants, v. Cyril T. FANECA, Jr., Appellee,
• Court: U.S. Court of Appeals — Fifth Circuit

332 F.2d 872 (1964)

UNITED STATES of America et al., Appellants, v. Cyril T. FANECA, Jr., Appellee,

No. 20906.

United States Court of Appeals Fifth Circuit.

June 1, 1964.

John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn, Stephen B. Swartz, Attys., Dept. of Justice, Robert E. Hauberg, U. S. Atty., Washingon, D. C., for appellants.

Edward L. Cates, Jackson, Miss., for appellee.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

RIVES, Circuit Judge.

The plaintiff, Cyril T. Faneca, Jr., filed this suit to recover damages resulting from alleged tortious and unconstitutional conduct in connection with the Government's efforts to effect the enrollment of James H. Meredith, a Negro, as a student at the University of Mississippi pursuant to the orders of this Court and the District Court for the Southern District of Mississippi. The defendants are the United States; Nicholas de B. Katzenbach, Deputy Attorney General of the United States; and James P. McShane, Chief of the Executive Office of the United States Marshals. The District Court for the Southern District of Mississippi denied the defendants' motion for summary judgment and motions to dismiss. This interlocutory appeal was certified and granted in accordance with 28 U.S.C. § 1292(b).

As against the United States, plaintiff sues under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Plaintiff alleges that the presence of the defendants on the campus of the University of Mississippi caused a large crowd of persons to congregate around the Lyceum Building; that on the wrongful and negligent command of the defendants tear gas or other riot gas projectiles were negligently fired into the crowd, thus provoking a riot or disturbance; and, further, that the United States, Katzenbach, and McShane lacked skill and ability in the formulation of plans or control of their personnel and should have known that the Deputy Marshals and Border Patrolmen were immature, nervous, or unseasoned in the use of gas projectiles and the controlling of large groups of persons. The plaintiff, a student at the University of Mississippi, alleges that he was walking on the campus when he was confronted by a group of marshals and Border Patrolmen, who, without warning or provocation, "wrongfully and in a negligent manner" charged toward plaintiff and fired gas projectiles at him, despite the fact that he begged them not to do so. He alleges that this denied him his rights to freedom of speech, to peacefully assemble, to life and liberty under due process of law, and to the equal protection of the laws.

The allegations in plaintiff's counts against Katzenbach and McShane are the same as those under the Federal Tort Claims Act, except that he alleges that the marshals and Border Patrolmen who fired at plaintiff did so willfully, intentionally, and purposefully, and acted under instructions by the defendants. No conspiracy is alleged.

Insofar as the plaintiff seeks recovery from the Deputy Attorney General and the Chief of the Executive Office for the United States Marshals, we make specific reference to our discussion of the doctrine of official immunity in No. 20722, Norton v. McShane, 5 Cir., 332 F.2d 855. Under the principles stated therein, it is clear that the formulation or plans and the manner of control over Government personnel were functions within the outer perimeter of the line of duty of these officers and involved decisions which it was necessary that they be free to make without fear or threat of vexations or fictitious suits. The defendants are therefore immune from liability. Again, 42 U.S.C. § 1983 does not apply since defendants were acting under color of federal law, not state law.

The plaintiff asserts that the United States is liable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The United States, however, states that the Act is not applicable because of the exception in 28 U.S.C. § 2680(a). Section 2680 provides in part:

"The provisions of this chapter and section 1346(b) of this title shall not apply to —

"(a) Any claim * * * 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." (Emphasis added.)

The primary authority on "discretionary function or duty" is Dalehite v. United States, 1952, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, which dealt with the decision to use certain explosives in the preparation of FGAN fertilizer. The Court said:

"The `discretion\' protected by the section is not that of the judge — a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one\'s judgment of the best course, a concept of substantial historical ancestry in American law." 346 U.S. at 34, 73 S.Ct. at 967.

The Court added:

"It is necessary to define, apart from this case, percisely where discretion ends. It is enough to hold, as we do, that the `discretionary function or duty\' that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and

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