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USCA1 Opinion

[NOT FOR PUBLICATION]


[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1370

MANUEL GONZALEZ-FIGUEROA, 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,


_____________

Aldrich and Coffin, Senior Circuit Judges.


_____________________

_________________________

Jesus Hernandez Sanchez and


________________________

Hernandez Sanchez Law Firm on


___________________________

brief for appellants.


Frank W. Hunger, Assistant Attorney General,
_______________
United

States Attorney, Robert S. Greenspan


___________________

Guillermo Gil,
_____________

and E. Roy Hawkens,


______________

Attorneys, Appellate Staff, United States Department of

Justice,

and Jacklyn L. Ringhausen, Associate Field Counsel, United States


_____________________
Department

of

Housing

and

Urban

Development,

on

brief

for

appellee.

_________________________

September 12, 1997

_________________________

Per Curiam.
Per Curiam.

The plaintiffs

in this case, most of whom

__________

are

former

employees

Administration

certain aspects

under the Federal

Rico

Public

housing program in

represents an effort to

Tort Claims Act (FTCA), 28

2671-2680 (1994).

28

Puerto

When the United States

Development (HUD)

U.S.C.

2675,

denied their

the

1997,

the

by filing

district

a motion

court

U.S.C.

timely administrative

filed suit

for dismissal.

the

1346(b),

Department of Housing

plaintiffs

dismissed

Puerto Rico.1

obtain damages

district court and later amended their complaint.

responded

Housing

money damages for, the privatization of

of the public

Their current initiative

claim,

the

(PRPHA), have been struggling since 1992 first to

block, and now to secure

and Urban

of

in

the

The government

On

February 25,

plaintiffs'

complaint for want of subject matter jurisdiction.

amended

See Gonzalez___ _________

Figueroa v. United States, No. 94-2761,


________
______________

Feb. 25, 1997).

1997 WL 117750

(D.P.R.

This appeal ensued.

We have

carefully read the parties'

their legal arguments, and

briefs, evaluated

studied the papers in

the case.

We

conclude, on whole-record review, that this is a suitable case in

which to act upon

produces a

our long-held belief that "when

comprehensive, well-reasoned

decision, an

court should refrain from writing at length to no

to

hear its

own words

Assur. Co. of Am.,


_________________

resonate."

a lower court

Lawton
______

appellate

other end than

v. State Mut. Life


________________

101 F.3d 218, 220 (1st Cir.

1996); accord In
______ __

____________________

1The underlying facts


this court.

are limned in

See Acevedo-Villalobos
___ __________________

an earlier opinion

v. Hernandez, 22
_________

of

F.3d 384,

385 (1st Cir. 1994).

re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36,
__________________________________________

Cir. 1993).

reasons

set

discretionary

Hence, we

forth

in

38 (1st

affirm the judgment for substantially the

the

lower

function exception

Figueroa, 1997 WL 117750, at *5-7.


________

court's

to the

discussion

FTCA.

See
___

of

the

Gonzalez_________

We add only a small coda.

It is not our role to pass judgment upon the wisdom (or

lack of wisdom) of

decided

to follow.

appeal, is

involved)

challenged

realm of

the housing policies which PRPHA and HUD have

Rather, our

to determine

had

the

only

statutory

role, in

whether HUD

authority

agreement with PRPHA and whether

its discretion when

the context

of this

(the federal

agency

to

enter

the

it acted within the

it exercised that authority.

Magee v. United States, No. 96-2357, 1997 WL 419551,


_____
______________

Cir. July 31, 1997).

into

See
___

at *3 (1st

Because these questions must be answered in

the affirmative,2 for the reasons already elucidated by the court

below, the FTCA's

2680(a), bars

discretionary function exception, 28

the maintenance

Magee, 1997 WL 419551,


_____

at *3.

of the

U.S.C.

plaintiffs' action.

After all, a

See
___

complaint under the

FTCA

cannot survive a

motion to dismiss if

sort of statutory conduct that

imperatives

States v.
______

of

an

Gaubert,
_______

it alleges only the

is plainly grounded in the policy

applicable regulatory

regime.

499 U.S.

(1991); Berkovitz
_________

315, 324-25

See United
___ ______

v.

____________________

2We have considered and

rejected, as a matter

of statutory

interpretation,

the plaintiffs' argument that, under 42 U.S.C.

1437d(j)(3)(A),

the Secretary

PRPHA

of HUD

was

required to

declare

in "substantial default" before entering into an agreement

that permits privatization.

The

text of the statute simply will

not bear the weight that the plaintiffs load upon it.

United States,
_____________

486 U.S.

531, 536-37,

(1988); United States v.


______________

Varig Airlines, 467 U.S. 797, 814 (1984).


______________

In

any event, as

Gonzalez-Figueroa,
_________________

1997

WL

the district court

117750,

at *4,

also recognized,

the

absence

of a

comparable cause of action against a private individual precludes

FTCA liability here.

We need go no further.

affirmed.

See 1st Cir. R. 27.1.


___

The judgment below is summarily

Affirmed.
Affirmed.
________

No Costs.
No Costs.
________