Herman Munoz and Vivian Munoz v. Government of Guam and I. Q. Aguon

625 F.2d 257

Herman MUNOZ and Vivian Munoz, Appellants,
v.
GOVERNMENT OF GUAM and I. Q. Aguon, Appellees.

No. 78-2721.

United States Court of Appeals,
Ninth Circuit.

Submitted July 10, 1980.
Decided Aug. 8, 1980.

1

John C. Dierking, Agana, Guam, for appellants.

2

Roger E. Willmeth, Asst. Atty. Gen., Agana, Guam, for appellees.

3

Appeal from the United States District Court, District of Guam (Appellate Division).

4

Before KILKENNY and SNEED, Circuit Judges, and CALLISTER, District Judge.*

5

Appellants brought this action against the Government of Guam and I. Q. Aguon, a police officer, alleging that they were injured when threatened, grabbed, and pushed by Aguon. The Government of Guam moved to dismiss the claim against it on the ground of sovereign immunity. The Superior Court of Guam granted the motion. Upon appeal to the District Court of Guam (Appellate Division), the three-judge court upheld the order of the Superior Court. Appellants appeal from the latter decision.

6

48 U.S.C. § 1421a provides in pertinent part: "The government of Guam shall have the powers set forth in this chapter, shall have power to sue by such name, and, with the consent of the legislature evidenced by an act of law, may be sued upon any contract entered into with respect to, or any tort committed incident to, the exercise by the government of Guam of any of its lawful powers." (Emphasis supplied.) The Guam legislature has consented to be sued in limited circumstances. Guam Gov. Code § 6500.01(b) provides in pertinent part: "The Government of Guam hereby waives immunity from liability . . . for claims in tort arising from the negligent acts of its employees, even though occurring in an activity in which private persons do not engage." (Emphasis supplied.)

7

Clearly, Guam has not waived its immunity with respect to intentional torts committed by its employees. Because appellants alleged and the evidence showed an intentional tort only, the decision of the district court must be affirmed.

8

We have considered appellants' arguments that the limited waiver of immunity is unconstitutional and find them utterly without merit. Lynch v. United States, 292 U.S. 571, 582, 54 S.Ct. 840, 844, 78 L.Ed. 1434 (1933); Broadway Open Air Theatre v. United States, 208 F.2d 257 (CA4 1953).

9

The order of the district court is affirmed.

*

The Honorable Marion J. Callister, United States District Judge for the District of Idaho, sitting by designation