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Oswaldo Enrique Tobar, et al v. United States of America

June 13, 2012

OSWALDO ENRIQUE TOBAR, ET AL.,
PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the mandate issued by the Court of Appeals for the Ninth Circuit.

I. Background

On May 4, 2007, Plaintiffs*fn1 initiated this action by filing a Complaint against the United States. (ECF No. 1). The Complaint alleged that on October 5, 2005, the United States Coast Guard Law Enforcement Detachment unlawfully and negligently stopped, searched, and detained Plaintiffs, residents of Ecuador, in international waters destroying the cargo and fish owned by Plaintiffs. The Complaint asserted claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2661, et seq., the Suits in Admiralty Act ("SAA"), 46 U.S.C. §§ 30901-30918, and the Public Vessels Act ("PVA"), 46 U.S.C. §§ 31101-31113.

On August 31, 2007, the United States filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The United States contended in part that the Suits in Admiralty Act ("SAA") does not provide a basis for subject matter jurisdiction in this action because the discretionary function applies retaining sovereign immunity for the United States.

On September 5, 2007, Plaintiffs filed a Motion to Compel Discovery and contended that "Defendant's motion relies on jurisdictional issues which are so intertwined with substantive issues that discovery is needed to oppose facts raised by the motion." (ECF No. 24 at 2). "Plaintiffs contend [ed that] they require additional information about facts underlying the discretionary function defense ...." Id.

The Magistrate Judge denied the Motion to Compel stating: "[the Court] finds that such discovery is not necessary to demonstrate facts in opposition to the jurisdictional issues raised in Defendant's 12(b)(1) motion." Id. at 3. The Magistrate Judge stated that "Plaintiffs have confirmed ... that the government has complied with the Court's order [to produce and exchange the actual documents identified in their Rule 26 disclosure lists]." Id. The Magistrate Judge stated that "[f]rom the numerous exhibits submitted by Plaintiffs in support of their motion to compel, it is clear that Plaintiffs have ample material with which to oppose Defendant's motion to dismiss." Id.

On January 15, 2008, this Court issued an order stating:

[A] well-recognized exception to the SAA's general waiver of the sovereign immunity is the "discretionary function" exception. Earles v. United States, 935 F.2d 1028, 1032 (9th Cir. 1991). The Supreme Court has articulated two factors (the "Gaubert factors") for courts to consider when determining whether the discretionary function exception applies to a particular case: (1) whether the nature of the challenged conduct involved "an element of judgment or choice," and

(2) whether "social, economic or political policy" considerations are implicated. United States v. Gaubert, 499 U.S. 315, 322-23 (1991); see also Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). ... Plaintiffs allege that the Coast Guard unlawfully stopped, searched and seized Plaintiffs' vessel suspected of drug smuggling. To support the contention that this allegedly unlawful conduct was discretionary, the United States submitted the Declaration of Brad J. Kieserman, the Chief of Operations Law at U.S. Coast Guard Headquarters, who attests that "[a]t all times, the Coast Guard is operating under its authority in 14 U.S.C. § 89 whenever it conducts maritime law enforcement," and that "the decision to conduct a boarding, the personnel who shall comprise the boarding team, and the manner of conducting the boarding is always left to the discretion of the on-scene Commander or Officer in Charge and Boarding Officer." Kieserman Decl. ¶¶ 8, 11. The first Gaubert factor is satisfied because the only evidence in the record demonstrates that the decision to stop, board, search and seize suspected drug smuggling vessels and the manner in which government agents conduct such activity is discretionary. See 14 U.S.C. § 89(a); Mid-South Holding Co., 225 F.3d at 1205; Kieserman Decl. ¶¶ 8, 11. The second Gaubert factor is satisfied because the challenged conduct implicates "social, economic or political policy considerations" in light of Congress' declaration that "trafficking in controlled substances aboard vessels is a serious international problem and universally condemned" and that "such trafficking presents a specific threat to the security and societal well-being of the United States." See B&F Trawlers, Inc., 841 F.2d at 631 (quoting 46 U.S.C. § 1902). The Court concludes Plaintiffs have failed to establish subject matter jurisdiction under the SAA because the discretionary function exception applies, retaining sovereign immunity. (ECF No. 27 at 4-8).

On February 5, 2008, Plaintiffs filed a First Amended Complaint. (ECF No. 28). The First Amended Complaint asserted that subject matter jurisdiction exists pursuant to: (1) the PVA; (2) the SAA; (3) the Alien Tort Statute, 28 U.S.C. § 1350; (4) the Convention on the Law of the Sea; (5) the International Covenant on Civil and Political Rights ("ICCPR"); and (6) a bilateral treaty between Ecuador and the United States concerning the use of an Air Force base at Manta, Ecuador.

On June 5, 2008, the United States filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction.

On August 19, 2008, the Magistrate Judge issued an order staying discovery. (ECF No. 56). The Magistrate Judge stated: "Plaintiffs ... argue that discovery is needed to prove-up more facts to substantiate a waiver of sovereign immunity." Id. at 2 (quotation omitted). The Magistrate Judge stated: "This Court has reviewed the Declaration [of the individual Plaintiffs seek to depose] and finds that a deposition of the declarant is not necessary to discover facts pertinent to a waiver of sovereign immunity." Id. at 4. The Magistrate Judge explained that the declarant identified the bilateral lease agreement, but "the bilateral lease agreement speaks for itself: it is not a treaty." Id. The Magistrate ...


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