STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the motion of defendant United States of America to dismiss the complaint in the above-entitled action. For the reasons set forth below, defendant's motion is granted, and the case is dismissed.
In considering a motion to dismiss, the Court must accept as true the factual allegations of plaintiffs' complaint, and any ambiguities must be resolved in plaintiffs' favor. See Doe v. United States Dept. of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985). The following facts are taken from the complaint.
Plaintiffs, Industria Panificadora, S.A., Inmobiliaria Santa Ana, S.A., and F.X. Video Club, S.A., have brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671 - 2680, and under the Alien Tort Claims Act (ATCA), 28 U.S.C.A. § 1350, to recover damages for property losses.
Plaintiffs are corporations organized and existing under the laws of the Republic of Panama, with their principal places of business in Panama City, Panama.
On or about December 20, 1989, United States Armed Forces engaged General Manuel Noriega's Panamanian Defense Force ("PDF") in Panama. The fighting was short-lived. In only a few days, the U.S. Armed Forces had defeated the PDF and caused the removal of General Noriega from power. The U.S. Armed Forces remained in Panama until approximately January 10, 1990. During part of this period, plaintiffs' properties were looted, burned, and destroyed by Panamanian civilians while the PDF, whose duties included the maintenance of public order, was engaged militarily with the U.S. Armed Forces. Attributing their property damages to defendant's alleged negligence, plaintiffs submitted claims to the United States Department of State for compensation. These claims were rejected. Through this action, plaintiffs now seek recovery for damages in the amount of $ 1,506,823.00.
Plaintiffs assert that the U.S. Armed Forces, by defeating the PDF, assumed the PDF's duty of maintaining public order in the alleged Occupied Zone.
Plaintiffs allege that unspecified U.S. personnel in Washington, D.C., breached such a duty by negligently failing to provide adequate numbers of police personnel to maintain public order. (Amended Complaint, paragraph 5.) Plaintiffs assert that they suffered damages as a direct and forseeable consequence of such a decision.
Defendant argues that plaintiffs' action must be dismissed because the Court lacks subject matter jurisdiction under the FTCA and the ATCA. Alternatively, defendant argues that this suit presents a nonjusticiable political question.
A. Federal Tort Claims Act
The FTCA was designed to render the United States liable for its torts essentially in the same manner and to the same extent as an individual, in like circumstances, under the law of the place where the wrong occurred. See United States v. Yellow Cab Co., 340 U.S. 543, 95 L. Ed. 523, 71 S. Ct. 399 (1951). However, liability under the Act does not give rise to carte blanche. The United States is liable only in the manner and to the extent to which it has consented. Although the FTCA "waives the Government's immunity from suit in sweeping language," id. at 547, the waiver is limited by the terms of the Act's exceptions. If a claim falls within any exception to the FTCA, sovereign immunity has not been waived and the court is without jurisdiction to hear the case. United States v. Orleans, 425 U.S. 807, 814, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976).
In its motion to dismiss, defendant argues that several such exceptions bar suit under the FTCA. They are: (1) the foreign country exception (28 U.S.C.A. § 2680(k)); (2) the combatant activities exception (28 U.S.C.A. § 2680(j)); (3) the exception that applies where there is no actionable duty under applicable state law (28 U.S.C.A. §§ 1346(b), 2674); and (4) the discretionary function exception (28 U.S.C.A. § 2680(a)). Because the Court finds that the discretionary function exception applies to this case, the remaining three exceptions need not be addressed.
1. Discretionary Function Exception
The discretionary function exception includes:
"any 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.A. § 2680(a).
This exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984). Where that "boundary" lies, however, has been subject to much interpretation by courts, because Congress did not clearly define "discretionary function."
The discretionary function exception articulates a policy of preventing tort actions from becoming a vehicle for judicial interference with decision-making that is properly exercised by other government branches. The exception embodies the separation of powers. Blessing v. United States, 447 F. Supp. 1160 (E.D. Pa. 1978). The seminal case of Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953), sets forth a broad interpretation of the exception. In that case, the Court held that the discretionary function exception barred recovery for claims arising from a massive fertilizer explosion. The fertilizer had been manufactured, packaged, and prepared for export pursuant to detailed regulations as part of a comprehensive federal program aimed at increasing the food supply in occupied areas after World War II. Id. at 19-21. Not only was the cabinet-level decision to institute the fertilizer program discretionary, but so too were the decisions concerning the specific requirements for manufacturing the fertilizer. Id. at 37-38. The Court stated:
It is unnecessary to define, apart from this case, precisely 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 decision there is discretion.
Id. at 35-36.
Unfortunately, the "lower court decisions since Dalehite do not comprise a particularly coherent body of case law." Blessing, 447 F. Supp. at 1172.
In determining whether the discretionary function exception applies, some courts have made a distinction between "planning" and "operational" decisions. Such a distinction is confusing because "planning" is seldom one defined stage of an overall operation.
"At what point, if any, are programmatic decisions and refinements made at the operational rather than at the planning level?" Id. at 1173 n. 19. This question exemplifies the line-drawing problem that lower courts have faced in dealing with the discretionary function exception.
Recently, the Supreme Court clarified the planning/operational distinction. The Court criticized lower courts' interpretation of this matter, stating that they were "perpetuating a nonexistent dichotomy between the discretionary functions and operational activities." United States v. Gaubert, 499 U.S. 315, 326, 113 L. Ed. 2d 335, 59 U.S.L.W. 4244, 4247, 111 S. Ct. 1267 (1991). In Gaubert, the United States Court of Appeals for the Fifth Circuit had held that the Federal Home Loan Bank Board and the Federal Home Loan Bank-Dallas had been negligent in carrying out their supervisory activities over certain aspects of a thrift institution's operation and that those actions were not within the discretionary function exception. 885 F.2d 1284 (5th Cir. 1989). The Supreme Court reversed, stating that "discretionary conduct is not confined to the policy or planning level." 499 U.S. at 325. Rather, "[a] discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policy-making or planning functions." Id. at 325. Moreover, "it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Varig Airlines, 467 U.S. at 813.
Other recent cases also have defined the nature of the conduct for which the exception is intended to apply. In Varig Airlines, the Court held that the Federal Aviation Administration's actions in formulating and implementing a "spot-check" plan for airplane inspection was protected by the discretionary function exception because of the agency's authority to establish safety standards for airplanes. Id. at 815. Actions taken in furtherance of the program were likewise protected, even if those particular actions were negligent. Id. at 820. In Berkovitz v. United States, 486 U.S. 531, 533, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988), the Court examined a comprehensive regulatory scheme governing the licensing of laboratories to produce polio vaccines and the release of particular drugs to the public. The Court found that some of the claims fell outside the exception, but only because the agency employees had failed to follow the specific directions contained in the applicable regulations, and that in those instances, there was no room for choice or judgment. Id. at 542-543. The case was remanded for analysis of the remaining claims in light of the applicable regulations. Id. at 544. The Court stated: "Assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function was designed to shield." Id. at 536.
The nature of the conduct reviewed in Monarch Insurance Co. v. District of Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff'd, 162 U.S. App. D.C. 97, 497 F.2d 684 (D.C. Cir.), cert. denied, 419 U.S. 1021, 42 L. Ed. 2d 295, 95 S. Ct. 497 (1974), is comparable to that of the instant case. In Monarch, this court held that the discretionary function exception barred claims challenging the adequacy of troops and police forces assigned in connection with third-party looting following the assassination of Dr. Martin Luther King, Jr. Similarly, in Smith v. United States, 330 F. Supp. 867 (E.D. Mich. 1971), the court held that the discretionary function exception applied. The plaintiff Smith, who was shot by National Guardsmen during a city riot, alleged negligence on the part of the Secretary of Defense and high-ranking officers of the National Guard and the Army. Id. at 868. The court stated:
The means and method of restoring order in a city faced with anarchy and breakdown of civilian authority are delegated to the Executive Branch of the Government, not the judiciary. That some may say with the wisdom of hindsight that the National Guard was not sufficiently prepared to cope with the delicate task of quelling a riot . . . does not create a cause of action. It is more appropriately a plea addressed to the legislative and executive branches of the Government.