MS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. Board of Commissioners, 636 F.3d 161

The Dock Board appeals a district court order dismissing its failure-to-dredge claims against the United States for lack of subject-matter jurisdiction.
The suit arises from the grounding of the M/V MSC TURCHIA near Napolean Avenue Wharf in 2008, allegedly due to the Army Corps of Engineers' failure to dredge and maintain navigable depths.
The Dock Board obtained a permit to dredge to -45 feet MLG and financed the dredging itself in 2002 and 2005.
Section 2232(f) of WRDA purportedly imposes a maintenance duty on the Secretary if specific criteria are met; the Dock Board argues this renders the Corps' dredging decisions non-discretionary.
The district court held that § 2232(f) does not remove Corps discretion and thus the claims fall within the discretionary function exception; it left other claims (failure to warn) for trial.
The Fifth Circuit denied review, affirming dismissal of the dredge claims on jurisdictional grounds under the discretionary function exception.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does WRDA § 2232(f) create a nondiscretionary duty to maintain dredging?	Dock Board contends §2232(f) binds the Government to maintain -45 ft depth.	Government argues §2232(f) preserves discretion in maintenance decisions.	No nondiscretionary duty; decisions remain discretionary.
Do the Dock Board’s permit and self-financed dredging eliminate Corps discretion under §2232(f)?	Permit and self-funded dredging supposedly trigger maintenance obligation.	Permits do not transplant policy-based maintenance duties; discretion remains.	Permitted, self-financed dredging does not remove discretion; claims barred.
Is the appeal proper under 28 U.S.C. §1292(a)(3) given it concerns an interlocutory order?	Interlocutory appeal should lie because dredge claims were dismissed on the merits.	Rights and liabilities not all resolved; appeal premature.	Appellate jurisdiction exists; order dismissing dredge claims is appealable under §1292(a)(3).

Canadian Pacific Ltd. v. United States, 534 F.2d 1165 (5th Cir.1976) (discretionary judgments re dredging remain within discretionary function exception)
Gaubert v. United States, 499 U.S. 315 (Supreme Court) (two-part test for discretionary function exception; judgment or choice and policy grounds)
Varig Airlines v. United States, 467 U.S. 797 (Supreme Court) (judicial review of discretionary governmental functions for policy-based decisions)
Ashcroft v. Iqbal, 129 S. Ct. 1937 (Supreme Court) (subject-matter jurisdiction governs when fairly in doubt; standard for pleading a claim)