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Tobar v. United States

United States District Court, S.D. California

January 16, 2015

OSWALDO ENRIQUE TOBAR, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion for Partial Summary Judgment and Motion for Partial Declaratory Judgment filed by Plaintiffs. (ECF No. 158).

I. Background

On January 4, 2007, Plaintiffs commenced this action by filing a Complaint against Defendant United States of America in the Southern District of Texas. (ECF No. 1). On May 2, 2007, this action was transferred to this Court. (ECF No. 1). On August 31, 2007, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (ECF No. 10). On January 15, 2008, the Court dismissed the Complaint for lack of subject matter jurisdiction, finding that the United States has not waived its sovereign immunity. (ECF No. 27).

On February 5, 2008, Plaintiffs filed the First Amended Complaint ("FAC"), which is the operative pleading in this case. (ECF No. 28). The FAC alleges subject matter jurisdiction pursuant to the following sources: (1) the Suits in Admiralty Act ("SAA"), 42 U.S.C. § 741 et seq.; (2) the Public Vessels Act ("PVA"), 46 U.S.C. § 781 et seq. and including 46 U.S.C. § 31111 (providing reciprocity requirement for suits brought by foreign nationals); (3) two treaties between the United States and Ecuador, one pursuant to the United Nations Covenant on the Law of the Sea ("UNCLS") and another entered into in 1999 (the "1999 Treaty"); (4) the Alien Tort Act ("ATA"), 28 U.S.C. § 1350; and (5) the International Covenant on Civil and Political Rights ("ICCPR"). The FAC alleges that Plaintiffs are residents of Ecuador. The FAC alleges that on or about October 5, 2005, Defendant's agents "unlawfully and negligently, stopped, searched, arrested, detained and imprisoned the Plaintiffs, seized the boat, destroyed the cargo and fish owned by Plaintiffs Rosa Carmelina Zambrano Lucas, and Oswaldo Enrique Tobar, for allegedly possessing illegal drugs" in international waters off the Galapagos Islands. (ECF No. 28 at 3). The FAC alleges that "agents of the Defendant were careless, reckless and negligent in this case or alternatively their acts were intentional in that they... [a]rrested and detained the Plaintiffs for no reason for over 99 days... [f]ailed to ascertain that Plaintiffs were not drug dealers and/or smugglers... [a]rrested the Plaintiffs without probable cause... [f]alsely imprisoned the Plaintiffs for no reason despite Plaintiffs' protestations... [f]ailed to release the Plaintiffs and their vessel when it became known they were not drug smugglers and did not possess any illegal substances... [v]iolated the Plaintiffs' international legal rights and law of the sea... [v]iolated international law by boarding and seizing a foreign flagged vessel in international waters... [c]ommitted various and numerous assaults on Plaintiffs persons during their imprisonment... [w]rongfully seized and kept the vessel owned by Plaintiffs Rosa Carmelina Zambrano Lucas and Oswaldo Enrique Tobar... violated right of privacy of all the Plaintiffs... [d]estroyed the personal property of the Plaintiffs without probable cause... [h]eld the Plaintiffs as prisoners under armed guard... [and] [v]iolated specific treaty obligations with Ecuador." Id. at 4. The FAC alleges that all Plaintiffs have suffered humiliation, physical and mental pain and suffering, extreme anxiety and depression. The FAC alleges that Plaintiffs Rosa Carmelina Zambrano Lucas and Oswaldo Enrique Tobar have suffered from destruction of their personal property, property damage to the vessel, loss of their catch of fish in the amount of $500, 000, lost use of the vessel, and public ridicule. Plaintiffs assert no claims for relief but request $5, 025, 000.00 in damages.

On June 5, 2008, Defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 31). On July 15, 2008, Plaintiffs filed a motion for leave to file a second amended complaint, adding the Military Claims Act ("MCA"), 10 U.S.C. section 2734, and a regulation, 49 C.F.R. section 1.46(b), as additional bases for subject matter jurisdiction. (ECF No. 44). On September 19, 2008, the Court issued an order granting the motion to dismiss and denying leave to amend. (ECF No. 57). The Court's September 19, 2008 Order concluded that the United States had not waived its sovereign immunity under any of the sources alleged in the FAC or proposed second amended complaint.

On September 22, 2008, judgment was entered. (ECF No. 58). On October 22, 2008, Plaintiffs filed a notice of appeal. (ECF No. 59). On June 14, 2011, the United States Court of Appeals for the Ninth Circuit issued an opinion, affirming in part and vacating in part the September 19, 2008 Order. Tobar v. United States, 639 F.3d 1191 (9th Cir. 2011); (ECF No. 70).

A. Tobar I

The U.S. Court of Appeals for the Ninth Circuit affirmed this Court's finding that there is no waiver of sovereign immunity as to all non-Congressional sources, the MCA, the ATA, and the treaties cited by Plaintiffs. Tobar, 639 F.3d at 1195-96. As to the PVA, SAA, and Federal Tort Claims Act ("FTCA"), the Ninth Circuit found that the case fell within the scope of the PVA. Id. at 1199. Accordingly, the Ninth Circuit held that the PVA's reciprocity requirement, 46 U.S.C. section 31111, must be met in order for Plaintiffs to maintain suit under PVA, SAA, or FTCA as foreign nationals. Id. at 1196, 1199. The Ninth Circuit stated that "[w]e are uncertain whether a plaintiff bears the burden of establishing the content of foreign law for purposes of the PVA's reciprocity requirement." Id. at 1200. The Ninth Circuit concluded that "the district court apparently did not recognize that, in its discretion, it could inquire further into the content of Ecuadorian law." Id. "We therefore vacate and remand." Id. "[W]e find it appropriate to give the parties and the court an additional opportunity to determine this threshold question." Id.

B. The June 13, 2012 Order (ECF No. 100)

On July 6, 2011, the Court ordered that "[t]he parties shall file supplemental briefing regarding whether reciprocity exists under Ecuadorian law within seventy-five days of the date of this order." (ECF No. 73). On January 5, 2012, the Court ordered that "[t]he parties are ordered to file English-language translations of every Constitution or Constitutional provision, law, statute, or legal authority upon which they rely no later than thirty days from the date of this Order." (ECF No. 92). On March 13, 2012, the Court ordered that "the parties shall file Memorandums addressing the issue of whether the discretionary function exception applies to the Public Vessels Act and would require dismissal of this action independent of any ruling as to reciprocity no later than March 26, 2012." (ECF No. 95). Following supplemental briefing on these issues, the Court issued an order on June 13, 2012. (ECF No. 100).

In the June 13, 2012 Order, the Court concluded that the discretionary function exception applied in this case under both the PVA and the SAA. The Court also concluded that reciprocity does not exist with Ecuador.

On July 12, 2012, Plaintiffs filed a notice of appeal of the June 13, 2012 Order. (ECF No. 101). On November 20, 2013, the Ninth Circuit issued an opinion affirming in part and vacating in part the June 13, 2012 order. Tobar v. United States, 731 F.3d 938 (9th Cir. 2013); (ECF No. 107).

C. Tobar II

In Tobar II, the Ninth Circuit considered "whether the government has waived its sovereign immunity, " specifically, "whether reciprocity with Ecuador exists and, if so, whether the discretionary function exception bars Plaintiffs' claims." Tobar, 731 F.3d at 941. With respect to reciprocity, the Ninth Circuit "disagree[d] with the district court's analysis of the experts' affidavits." Id. Specifically, the Ninth Circuit found that Plaintiffs' expert affidavits established that sovereign immunity does not exist in Ecuador because it is a civil law nation and there would be "no legal impediment to a United States citizen's suing the Ecuadorian government in similar circumstances...." Id. at 942. Therefore, "reciprocity exists." Id.

With respect to the discretionary function exception, the Ninth Circuit began its analysis by holding that the discretionary function applies to suits under the PVA and SAA. The Ninth Circuit then considered whether the discretionary function exception applies in this case. With respect to the first step of the analysis, "whether the challenged actions involve an element of judgment or choice, '" Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (citation omitted), the Ninth Circuit found, based on the pleadings, that Plaintiffs had established that Defendant's actions did not involve an element of judgment or choice. Tobar, 731 F.3d at 946-47. Specifically, the Ninth Circuit found:

Plaintiffs do not assert that § 89(a) prescribes a specific course of action. Instead, they assert that the government violated its own regulations and policies. In particular, the U.S. Coast Guard Maritime Law Enforcement Manual provides: "When acting pursuant to flag State authorization, the boarding State may not exceed the terms of the authorization. Such authorization may be contained in a pre-existing written agreement or may be provided on an ad hoc basis." That policy does not afford any discretion: "the boarding State may not exceed the terms of the authorization." (Emphasis added.) Here, the specific authorization to board and inspect Plaintiffs' boat contained the following condition: "If there are no drugs on board, and there are damages or losses sustained by the vessel, in accordance to the U.S. laws and in a manner complying with international laws, the owner of the vessel will be compensated, as long as neither the vessel nor the crew have been involved in illicit actions." That directive, too, is specific and mandatory: The owner "will be compensated, " so long as the specified conditions are met. (Emphasis added.) By carrying out its activities with respect to Plaintiffs' boat, the government accepted that mandatory obligation.
Accordingly, to the extent that Plaintiffs demonstrate that all of the specified conditions have been met, their claims are not barred by ...

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