Tobar v. United States, No. 12-56298 (9th Cir. 2013)
Annotate this CasePlaintiffs, the crew of an Ecuadorian fishing boat, filed suit against the United States, alleging that the United States harmed plaintiffs and their property when the Coast Guard boarded the boat in search of drugs. The court held that, on the evidence submitted by the parties, reciprocity with Ecuador existed; the discretionary function exception applied generally to plaintiffs' claims because most of the actions by the Coast Guard were discretionary; the government could have violated its non-discretionary policy of paying damages to the owner of the boat; and to the extent that plaintiffs could establish that the United States violated that mandatory obligation, sovereign immunity did not bar this action. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings.
Court Description: Sovereign Immunity. The panel affirmed in part and vacated in part the district court’s dismissal based on the federal government’s sovereign immunity, or alternatively under the discretionary function exception to the waiver of sovereign immunity, of an action brought by the crew of an Ecuadorian fishing boat that was searched and towed by the United States Coast Guard. The panel held that on the evidence submitted in this case, reciprocity with Ecuador exists because, in similar circumstances, nationals of the United States are able to sue Ecuador in Ecuadorian courts. The panel concluded that the government’s waiver of sovereign immunity was not barred by the reciprocity requirement. The panel also held that the discretionary function exception to the waiver of sovereign immunity, contained in the Federal Tort Claims Act, also applied to the Public Vessels Act. The panel further held that the government’s waiver of sovereign immunity was not barred by the discretionary function exception to the extent that plaintiffs’ claims resulted from the failure of the government to meet its non-discretionary duty to pay damages, contained in Ecuador’s authorization to board plaintiffs’ vessel and incorporated by reference in the Coast Guard Maritime Law Enforcement Manual. Finally, the panel held that to the extent that plaintiffs’ claims fell outside the non-discretionary duty to pay damages, their claims were barred by the discretionary function exception.
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