Oswaldo Tobar v. United States
731 F.3d 938
9th Cir.2013Background
- In 2005 the U.S. Coast Guard, with Ecuadorian authorization, boarded, searched for drugs on, and towed an Ecuadorian fishing vessel in international waters; no drugs were found and the vessel and crew allege damage and injury.
- Plaintiffs (Ecuadorian crew/owners) sued the United States alleging torts under the FTCA, the Suits in Admiralty Act (SAA), and the Public Vessels Act (PVA); the district court dismissed for lack of waiver of sovereign immunity.
- On prior appeal this Court remanded for further factual development regarding whether Ecuador affords reciprocity (a condition to waiver under 46 U.S.C. § 31111).
- On remand parties submitted competing expert affidavits on Ecuadorian law; the district court again found no reciprocity and alternatively held the discretionary-function exception barred the claims.
- This panel concludes (1) the evidence shows Ecuadorian law allows U.S. nationals to sue Ecuador in similar circumstances (reciprocity satisfied), and (2) most Coast Guard actions are protected by the discretionary-function exception, but (3) a non-discretionary, mandatory promise to compensate the vessel owner (contained in Ecuadorian authorization and incorporated into Coast Guard policy) may have been breached and is not barred by the discretionary-function exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reciprocity under 46 U.S.C. § 31111 exists with Ecuador | Ecuadorian law (civil-law tradition) lacks common-law sovereign-immunity doctrine; U.S. nationals could sue Ecuador in its courts | Ecuador effectively lacks practical reciprocity; Ecuadorian law or practice would prevent successful suits against the state | Reciprocity exists as a matter of law: experts show Ecuador does not apply sovereign immunity in the common-law sense and U.S. nationals may sue there |
| Whether PVA/SAA/FTCA claims are barred by the discretionary-function exception | Many claimed harms flowed from ministerial or regulatory violations (mandatory obligations) not shielded by the exception | Coast Guard boarding, searching, towing and related decisions are discretionary policy-driven law-enforcement functions | The discretionary-function exception generally applies to boarding/search/tow decisions (policy-based), but does not bar claims based on breach of a mandatory, non-discretionary duty to compensate the vessel owner per the authorization and Coast Guard policy |
| Whether Coast Guard policy/regulation created a non-discretionary duty to compensate the vessel owner | The authorization condition and Coast Guard manual mandate compensation to the owner if no drugs and vessel damaged | Actions were discretionary law-enforcement activities; no mandatory payment duty applies | The authorization language plus the Maritime Law Enforcement Manual impose a specific mandatory obligation to compensate the owner if conditions are met; that claim survives discretionary-function preclusion and requires factual development (including administrative exhaustion) |
| Whether the court abused its discretion by denying further discovery on reciprocity | Additional discovery could show Ecuadorian practice or barriers to effective suits | Existing expert affidavits and lack of identified missing facts justified denial | No abuse of discretion: plaintiffs failed to identify specific discovery likely to change legal determination about reciprocity |
Key Cases Cited
- United Cont’l Tuna Corp. v. United States, 425 U.S. 164 (Sup. Ct.) (PVA reciprocity inquiry affects FTCA/SAA claims)
- Taghadomi v. United States, 401 F.3d 1080 (9th Cir. 2005) (reciprocity under PVA applies to related claims)
- Earles v. United States, 935 F.2d 1028 (9th Cir. 1991) (discretionary-function exception applies to SAA; reasoning extends to PVA)
- Thames Shipyard & Repair Co. v. United States, 350 F.3d 247 (1st Cir. 2003) (discretionary-function applies to PVA claims)
- B & F Trawlers, Inc. v. United States, 841 F.2d 626 (5th Cir. 1988) (Coast Guard boarding/towing for drug enforcement is policy-driven)
- Mid-South Holding Co. v. United States, 225 F.3d 1201 (11th Cir. 2000) (decision to board/search a vessel implicates policy considerations and discretionary-function protection)
- Gaubert v. United States, 499 U.S. 315 (Sup. Ct. 1991) (two-step discretionary-function analysis)
- Berkovitz v. United States, 486 U.S. 531 (Sup. Ct. 1988) (framework for distinguishing discretionary from mandatory duties)
- Varig Airlines v. United States, 467 U.S. 797 (Sup. Ct. 1984) (limits on FTCA liability for policy-based governmental actions)
- Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) (incorporating FTCA exceptions into maritime statutes)