Earles v. United States

LEAVY, Circuit Judge: This is a case of first impression in which we are called upon to resolve the question whether the so-called Discretionary Function Exception (“Exception”) to the Federal Tort Claims Act (“FTCA”), see 28 U.S.C. § 2680(a) (1988), applies to the Suits in Admiralty Act (“SIAA”), 46 U.S.C. App. §§ 741-752 (1988). We now join with the majority of other circuits to have decided this issue and hold that the Exception is applicable to the SIAA. FACTS AND PROCEEDINGS On October 27, 1984, Tony Sutton borrowed a 20' jet ski boat, the WHISKEY RUNNER, from a local boat dealer in Long Beach, California. That evening he and four friends, Virl Earles, John Bakos, Ernest Chavez and Ronald Myers, sailed the WHISKEY RUNNER to a party at a restaurant located on the inland channel of Huntington Harbor. Around 1:30 a.m. these five individuals, along with Stephen Brennan, Patricia Hulings, Carol Kemble and Kathy Weaver, boarded the WHISKEY RUNNER and sailed through the Huntington Harbor’s inland waterway. They exited through the channel designated for recreational boats at the United States Naval Weapons Station at Seal Beach, Huntington Harbor, and proceeded down the — 1030 — channel through Anaheim Bay and out into the Pacific Ocean. The nine passed through Long Beach Harbor to view the QUEEN MARY, then returned to Huntington Harbor around 3:00 a.m. The WHISKEY RUNNER, with Earles at its helm, entered Huntington Harbor at a high rate of speed, subsequently calculated at 40-45 miles per hour (the local speed limits ranged between 3 and 8 knots), and struck Oscar 8, an unilluminated Navy mooring buoy. The boat sank immediately. Bakos, Hulings, Myers, Sutton and Weaver died in the allision, while the four survivors suffered varying degrees of injury. A sobriety test administered to Earles several hours later revealed a blood-alcohol level of .11%. Robert and Marilyn Sharp, the owners of the WHISKEY RUNNER; Sundown Marine, the local dealer from whom Sutton had borrowed the boat; and Sundown Marine’s owner, Robert Long,1 commenced what developed into the instant litigation by filing petitions for exoneration from or limitation of liability in federal district court. Numerous additional actions were subsequently filed against the United States by the survivors and the decedents’ representatives, all seeking damages under the SIAA based on the Navy’s alleged negligence for failing, inter alia, to illuminate Oscar 8. The government impleaded Earles and, following stipulations for exoneration from liability on the part of the Sharps, Sundown Marine, and Long, the district court consolidated the remaining actions for trial. In bifurcated proceedings, the district court found the United States and Earles to have been equally negligent and jointly and severally liable for damages totalling $2,206,091.19, less Earles’ offset contribution of $148,770.00, representing 50% of his damage award. The United States has timely appealed. DISCUSSION I Although the government has advanced several claims of error, the crux of its argument on appeal is that the district court erred by failing to hold that the Discretionary Function Exception applies to the SIAA and would preclude recovery under the facts of this case. The district court’s ruling that the Exception does not apply to the SIAA is a legal conclusion based on statutory construction and is subject to de novo review. See Price v. Hawaii, 921 F.2d 950, 954 (9th Cir.1990). The Discretionary Function Exception is a qualification to the general waiver of sovereign immunity granted by the FTCA. The Exception states, in relevant part, that a claim cannot be maintained against the United States when that claim is “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a) (1988). Cf. Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1026-27 (9th Cir.1987) (Discretionary Function Exception to Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(5)(A)), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). “[T]he discretionary function exception is based on a ‘combination of the doctrines of sovereign immunity and separation of powers.’ ” Gordon v. Lykes Bros. S.S. Co., 835 F.2d 96, 99 (5th Cir.) (quoting Wiggins v. United States, through Dep’t of Army, 799 F.2d 962, 965 (5th Cir.1986)), cert. denied, 488 U.S. 825, 109 S.Ct. 73, 102 L.Ed.2d 50 (1988). Accord, Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1021 (9th Cir.1989) (“[gjrounded in separation of powers concerns”). The second of these considerations is “a doctrine to which the courts must adhere even in the absence of an explicit statutory command.” In re Joint E. & S. Dists. Asbestos Litigation, 891 F.2d 31, 35 (2d Cir.1989) (internal quotations and citation omitted). — 1031 — In deciding whether and how to apply the Exception, the Supreme Court has offered the following guidance: First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.... [T]he basic inquiry ... is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability. Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.... Congress wished to prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813-14, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984) (discussing the Exception in the context of the FTCA). Thus, where challenged conduct involves an element of judgment grounded in social, economic or political policy, the Exception should apply and preclude judicial “second-guessing” by barring the exercise of jurisdiction over the claim. See Summers v. United States, 905 F.2d 1212, 1215 (9th Cir.1990) (FTCA claim); Kennewick Irrigation Dist., 880 F.2d at 1024-25 (same; discussing distinction between economic considerations and economic policy); Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1504 (9th Cir.1989) (FTCA claim). Unlike the FTCA, however, the SIAA does not expressly immunize the government for the exercise of a discretionary function. Sheridan Transp. Co. v. United States, 897 F.2d 795, 798 n. 2 (5th Cir.1990). However, the omission of the Exception from the SIAA does not necessarily mean that the SIAA is not subject to it. As the Second Circuit has noted, The exception was drafted merely as a “clarifying amendment” to the FTCA, Dalehite v. United States, 346 U.S. 15, 26 [73 S.Ct. 956, 963, 97 L.Ed. 1427] (1953), since Congress “believed that claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction.” Varig Airlines, 467 U.S. at 810, 104 S.Ct. at 2762. In re Joint E. & S. Dists. Asbestos Litigation, 891 F.2d at 35. Accord, Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988) (citing and quoting Dalehite and Varig Airlines). See also Kennewick Irrigation Dist., 880 F.2d at 1022-23 (discussing Dalehite, Varig Airlines and Berkovitz in context of Discretionary Function Exception under FTCA). Although this circuit has not yet decided whether the Exception should be read into the SIAA, see e.g., Wong Wing Fai Co., S.A. v. United States, 840 F.2d 1462, 1470 n. 18 (9th Cir.1988); Huber v. United States, 838 F.2d 398, 400 & n. 1 (9th Cir.1988), every circuit but one2 to have considered the question has found the Exception applicable to the SIAA. See Canadian Transp. Co. v. United States, 663 F.2d 1081, 1085-87 (D.C.Cir.1980); Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977); In re Joint E. & S. Dists. Asbestos Litigation, 891 F.2d at 35; Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 891 (3d Cir.1990); Wiggins, 799 F.2d at 965-66; Gemp v. United States, 684 F.2d 404, 408 (6th Cir. — 1032 — 1982); Bearce v. United States, 614 F.2d 556, 559-60 (7th Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980); Williams v. United States, 581 F.Supp. 847, 852 (S.D.Ga.1983), aff'd on opinion below, 747 F.2d 700 (11th Cir.1984). In addition, at least two district courts of this circuit have found the Exception applicable to the SIAA. See Olympia Sauna Compania Naviera, S.A. v. United States, 670 F.Supp. 1498, 1503-04 (D.Or.1987); Rappenecker v. United States, 509 F.Supp. 1024, 1027 (N.D.Calif.1980). The reasoning of these other courts was perhaps best summarized by the Second Circuit: Were we to find the discretionary function exception not to be applicable to the S[IJAA, we would subject all administrative and legislative decisions concerning the public interest in maritime matters to independent judicial review in the not unlikely event that the implementation of those policy judgments were to cause private injuries. In re Joint E. & S. Dists. Asbestos Litigation, 891 F.2d at 35 (internal quotations and citations omitted). We agree with this reasoning and conclude that this circuit should now join with the D.C., First, Second, Third, Fifth, Sixth, Seventh and Eleventh Circuits and hold that the Discretionary Function Exception applies to the SIAA as well as to the FTCA. Because the district court held to the contrary, we must vacate its judgment and remand for a determination whether the Exception should apply to bar recovery under these facts. On remand, the district court must resolve the question whether the Navy could properly rely on the Coast Guard's decision to illuminate or otherwise mark only 27 of the 1,436 mooring buoys in Southern California, not including Oscar 8, and whether that decision was a discretionary act based on policy considerations that would preclude recovery to the appellees. See Kennewick irrigation Dist., 880 F.2d at 1024-25. Because of our holding on this issue, we need not and do not reach the merits of the parties' arguments concerning negligence, either on the part of the government as the cause of, or on the part of the passengers as contributing factors to, the accident. For the same reason we decline the government's invitation to review the district court's various damage awards, although we note that the Supreme Court has recently spoken on the issue of loss of society damages in general maritime wrongful death actions. See Miles v. Apex Marine Corp., - U.S. -, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). VACATED AND REMANDED. Footnotes [1] The Sharps had traded in the WHISKEY RUNNER as a down payment on a new boat at Sundown Marine, but the formal transfer of title to the WHISKEY RUNNER had not taken place as of the date of the accident. [2] In Lane v. United States, 529 F.2d 175, 179 (4th Cir.1975), the Fourth Circuit found no immunity from liability on the part of the Coast Guard under the SIAA for what the court held to have been an abuse of discretion. However, the Fourth Circuit retreated from this stance eight years later in Faust v. South Carolina State Hwy. Dep't, 721 F.2d 934, 938-39 (4th Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984), and at least two other circuits have interpreted Faust as implying that the Fourth Circuit would now read the Discretionary Function Exception into the SIAA. See In re Joint E. & S. Dists. Asbestos Litigation, 891 F.2d at 35; Wiggins, 799 F.2d at 965.