

                    [NOT FOR PUBLICATION]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 &amp; 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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