IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 97-00877-CIV-J-10A
MID-SOUTH HOLDING COMPANY, INC.,
UNITED STATES OF AMERICA,
Appeal from the United States District
for the Middle District of Florida
(September 1, 2000)
Before BLACK, CARNES and KRAVITCH,
KRAVITCH, Circuit Judge:
In this appeal we decide whether
the "discretionary function" exception to the waiver
of the United States' sovereign immunity found in the Suits in
Admiralty Act precludes a claim arising out of the allegedly
negligent performance of a search of a vessel by the United States
Customs Service and Coast Guard. We hold that it does.
I. BACKGROUND AND PROCEDURAL
On or about May 16, 1996, agents
of the United States Customs Service and Coast Guard (collectively,
the "Customs Service"1) boarded the "Abner's Choice"
(the "vessel"), a commercial fishing vessel operated
by Plaintiff- Appellant Mid-South Holding Company, Inc., ("Mid-South")
and docked at the Sister's Creek Marina in Jacksonville, Florida.
Acting on reports that the vessel was involved in narcotics trafficking,
the agents searched the vessel for contraband, but discovered
none. The search of the vessel lasted approximately thirty minutes.
On the day following the search,
the vessel's lower hold and engine room flooded, causing it to
sink. Mid-South attributes this incident to the disconnection
sometime during the search of an electrical cord that powered
the vessel's bilge pump. Although Charles Abner, the founder
and a corporate officer of Mid-South, was able to refloat the
vessel, an electrical outage two weeks later disabled the vessel's
bilge pump, again causing the vessel to flood and sink. Abner
was unable to refloat the vessel a second time, presumably because
of structural damages resulting from the first sinking.
After pursuing an unsuccessful administrative
claim with the Customs Service to recover the value of the lost
vessel, Mid- South filed a complaint against the United States
in the United States District Court for the Middle District of
Florida. Originally, Mid-South brought its cause of action under
the Federal Tort Claims Act (the "FTCA"), 28 U.S.C.
§§ 1346(b), 2671-80, but subsequently amended its complaint
by substituting the Suits in Admiralty Act (the "SAA"),
46 U.S.C. §§ 741-52, as the proper basis for the suit.
The United States moved for dismissal or, alternatively, summary
judgment on two grounds: (1) the district court lacked subject
matter jurisdiction over the SAA claim because the United States
enjoys sovereign immunity from claims arising from the detention
of goods by agents of the Customs Service; and (2) Mid-South
did not have standing to bring the suit because it did not own
the vessel at the time it was destroyed and therefore was not
a "real party in interest."2 The district court agreed with
the former assertion and granted the United States' motion. This
It is a well-settled axiom that
"[t]he United States, as sovereign, is immune from suit
save as it consents to be sued." United States v. Sherwood,
312 U.S. 584, 586, 61 S. Ct. 767, 769 (1941). Supreme Court precedent
has expounded that this waiver of immunity "must be unequivocally
expressed in statutory text." Lane v. Pena, 518 U.S.
187, 192, 116 S. Ct. 2092, 2096 (1996). The SAA, which provides
the sole jurisdictional basis for admiralty claims against the
United States, includes such an explicit waiver: "In cases
where . . . if a private person or property were involved, a
proceeding in admiralty could be maintained, any appropriate
nonjury proceeding in personam may be brought against the United
States . . . ." 46 U.S.C. § 742 (2000); see also
Drake Towing Co. v. Meisner Marine Constr. Co., 765 F.2d
1060, 1063-64 (11th Cir. 1985). Although the text of the SAA
does not impose any limitations on this waiver of immunity, courts
have recognized that exceptions exist. For example, every circuit
to consider the issue has concluded that the SAA's waiver of
immunity is subject to the "discretionary function"
exception identified in the FTCA, 28 U.S.C. § 2680(a). See
Tew v. United States, 86 F.3d 1003, 1005 (10th Cir. 1996)
(listing cases from the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Ninth, Eleventh, and D.C. Circuits, and joining
in their shared holding). Where applicable, such an exception
to this statutory waiver of immunity abrogates federal subject
matter jurisdiction over any pursuant claim. See Cohen
v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998) (characterizing
sovereign immunity as an issue of subject matter jurisdiction).
Before the district court, the United
States argued that another of the FTCA's exceptions to its waiver
of immunity-the "law enforcement" exception, 28 U.S.C.
be incorporated judicially into the SAA, and the district court
agreed. Prior to oral argument, however, this court raised the
possibility that the discretionary function exception, as defined
in the FTCA, also might confer immunity on the United States
and accordingly ordered supplemental briefing.4 As alluded to above, this circuit
is among the majority holding that the SAA's waiver of immunity
is subject to the discretionary function exception. See
Williams v. United States, 747 F.2d 700, 700 (11th Cir.
1984), aff'g and adopting Williams By and Through Sharpley
v. United States, 581 F. Supp. 847 (S.D. Ga. 1983). Although
the United States did not initially elect to assert this exception
as a basis for immunity, judicial providence counsels us to consider
its applicability to the instant case before reaching the novel
question of whether to incorporate the FTCA's law enforcement
exception into the SAA. See Allen v. Ferguson,
791 F.2d 611, 615 (7th Cir. 1986) ("[I]n keeping with the
notions of judicial restraint, federal courts should not reach
out to resolve complex and controversial questions when a decision
may be based on a narrower ground.").5 We review issues concerning subject
matter jurisdiction de novo. See Bishop v. Reno,
210 F.3d 1295, 1298 (11th Cir. 2000).
The FTCA's discretionary function
exception preserves the United States' sovereign immunity against
"[a]ny claim . . . 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
[United States], whether or not the discretion involved be abused."
28 U.S.C. § 2680(a) (2000). The Supreme Court has articulated
a two-part test for determining whether the conduct of a government
agency or employee falls within the scope of this exception.
First, a reviewing court must ascertain the nature of the challenged
conduct and assess whether it involved an element of judgment
or choice. See United States v. Gaubert, 499 U.S.
315, 322, 111 S. Ct. 1267, 1273 (1991). Second, the court decides
"`whether that judgment is of the kind that the discretionary
function exception was designed to shield.'" Id.
at 322-23, 111 S. Ct. at 1273 (quoting Berkovitz v. United
States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1959 (1988)).
The United States asserts, and we
agree, that the threshold governmental action at issue here is
the Customs Service's decision to board and search the vessel.
We must therefore examine the statutory and regulatory guidelines
governing these activities and determine whether they mandate
a particular manner in which to execute them. See Hughes
v. United States, 110 F.3d 765, 768 (11th Cir. 1997). According
to 19 U.S.C. § 1581(a):
Any officer of the customs may
at any time go on board of any vessel or vehicle at any
place in the United States or within the customs waters .
. . and examine the manifest and other documents and papers and
examine, inspect, and search the vessel or vehicle and
every part thereof and any person, trunk, package, or cargo
on board, and to this end may hail and stop such vessel or vehicle,
and use all necessary force to compel compliance.
19 U.S.C. § 1581(a) (2000)
(emphasis added); see also Boarding & Search of Vessels,
19 C.F.R. § 162.3(a) (1999).6 This broad grant of authority,
particularly as embodied in the emphasized language, leaves the
Customs Service a great deal of discretion, cabined of course
by constitutional constraints, in deciding which vessels to board
and search, thus satisfying the first prong of the Gaubert
analysis. See Autery v. United States, 992 F.2d
1523, 1529 (11th Cir. 1993) (observing that an unspecific statutory
or regulatory guideline implies that discretion was intended).
"Because the purpose of the
[discretionary function] exception is 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," Gaubert, 499 U.S. at 323,
111 S. Ct. at 1273 (internal quotation omitted), we must determine,
in applying the second prong of the Gaubert analysis,
whether the challenged conduct of the government agency or employee
is "susceptible to policy analysis," id. at
325, 111 S. Ct. at 1275. We agree with the United States that
the decision to board and search a vessel is the product of the
balancing of various compelling policy considerations. The Customs
Service shoulders the significant burden of cooperating in the
enforcement of this country's anti- narcotics laws. See, e.g.,
National Drug Interdiction Improvement Act of 1986, Pub. L. No.
99-570, tit. III, § 3002(5), 100 Stat. 3207, 3273-74 (1986)
(congressional findings recognizing the role of the Customs Service
in narcotics interdiction). This responsibility naturally influences
the manner in which the Customs Service conducts its law enforcement
In a case involving the destruction
of a vessel following its apprehension by the Coast Guard on
suspicion of narcotics transportation, the Fifth Circuit observed:
To board, search, and seize any
vessel suspected of smuggling narcotics is a sovereign prerogative
that has taken on paramount significance in light of the epidemic
encroachment of illegal drugs into our country. Congress has
declared that "trafficking in controlled substances aboard
vessels is a serious international problem and is universally
condemned. Moreover, such trafficking presents a specific threat
to the security and societal well-being of the United States."
46 U.S.C. § 1902. . . . [W]e seriously doubt that Congress
intended to expose the [United States] to liability . . . that
would not only inhibit Coast Guard enforcement efforts but would
also effectively reallocate scarce law enforcement resources
from drug interdiction . . . .
B & F Trawlers, Inc. v. United
States, 841 F.2d 626, 631
(5th Cir. 1988). The considerations cited by the Fifth Circuit
apply with equal force here. The Customs Service, faced with
escalating enforcement duties and limited resources, must decide
how best to effectuate our nation's anti-narcotics laws. In so
doing, the Customs Service necessarily exercises discretion in
choosing whether to board and search a vessel, weighing the costs
of implementing such activities against the likelihood of an
enforcement success. Cf. Mesa v. United States,
123 F.3d 1435, 1438 (11th Cir. 1997) (discussing the law enforcement-
related policy concerns attending the execution of an arrest
warrant); Ochran v. United States, 117 F.3d 495, 501 (same,
in relation to the protection of federal witnesses). The discretionary
function exception was designed to prevent judicial "second
guessing" of exactly this type of policy-based decision.
Of course, the injury Mid-South
alleges cannot be attributed directly to the Custom Service's
decision to board and search its vessel. Rather, the act that
purportedly caused the injury would had to have occurred during
the operational execution of that decision. As the Supreme Court
made clear in Gaubert, however, "[d]iscretionary
conduct is not confined to the policy or planning level. `[I]t
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.'" 499 U.S. at 325, 111 S. Ct. at 1275 (quoting
United States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 813, 104 S. Ct. 2755, 2764
(1984)). Any act, therefore, regardless of the administrative
level at which it is authorized or taken, qualifies as "discretionary"
provided it satisfies the Gaubert analysis. We therefore
agree with the United States that the on-site decisions of the
agents of the Customs Service concerning the manner in which
to search the vessel also fall within the scope of the discretionary
function exception. See Varig Airlines, 467 U.S.
at 819-20, 104 S. Ct. at 2767-68 (observing that discretionary
actions in furtherance of a policy decision are within the scope
of the exception). Because no statute or corresponding regulation
prescribes the methodology for boarding or searching a vessel,7 field
agents are left to their discretion to devise the best course
for executing these functions. In so doing, the agents must balance
their overarching goal of locating contraband with such concerns
as efficiency and the minimization of intrusion on the privacy
and property interests of searched parties. Although the attendant
details could be characterized as mundane or as disengaged from
any substantial policy consideration, they are nonetheless critical
to the performance of the discretionary scheme and, accordingly,
are entitled to the protection of the discretionary function
exception. Cf. Mesa v. United States, 837 F. Supp.
1210, 1216 (S.D. Fla. 1993), aff'd, 123 F.3d 1435 (11th
Cir. 1997) (exhaustively cataloguing the policy-based details
attending the execution of an arrest warrant that the court concluded
were within the scope of the discretionary function exception).
As the Fifth Circuit has cautioned:
[A]lmost any exercise of governmental
discretion could be overly parsed so as to focus on minute details
of sub-decisions to the point that any relationship to policy
would appear too attenuated. But doing that obscures the very
purpose of the discretionary function exception. . . . [S]uch
tunnel-visioned analyses would render the discretionary function
exception nugatory and open virtually every decision that implements
a governmental decision to liability . . . .
Baldassaro v. United States, 64 F.3d 206, 211-12 (5th Cir. 1995).
Mid-South contends that although
the discretionary function exception may shield the United States
from claims arising out of the decision to search or the manner
in which the search was conducted, it does not foreclose a claim
premised on the discrete act alleged here-the disconnection of
the electrical cord powering the vessel's bilge pump. Essentially,
Mid-South argues that the record does not establish that the
agents searching the vessel made an affirmative decision to disconnect
the electrical cord as part of their search, thereby dissociating
the act from the agents' exercise of discretion in pursuit of
the objectives of the search. Mid-South misapprehends, however,
the focus of the Gaubert analysis, which "is not
on the agent's subjective intent in exercising the discretion
conferred by statute or regulation, but on the nature of the
actions taken and on whether they are susceptible to policy analysis."
Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275 (emphasis
added). Our inquiry, therefore, is whether, objectively, disconnecting
the electrical cord was conceivably in furtherance of
the search. Because, as the United States hypothesizes, the disconnection
of the cord may have been necessary to gain access to areas of
the vessel the agents desired to search or else to eliminate
a potential safety hazard to the agents, we find that it was.
Accordingly, we conclude that the allegedly negligent act, regardless
of its impetus, qualifies as a discretionary function within
the scope of the exception.8
Because we hold that the discretionary
function exception to the SAA's waiver of the United States'
sovereign immunity applies in this case, we AFFIRM the district
court's ultimate conclusion that it lacked subject matter jurisdiction
over Mid-South's claim. We therefore need not consider whether
that waiver is also subject to the FTCA's law enforcement exception.
Coast Guard officers are "deemed
to be acting as agents of the particular executive department
. . . charged with the administration of the particular law."
See 14 U.S.C. § 89(b)(1) (2000). Because the Coast
Guard was acting at the direction of the Customs Service in its
enforcement of, presumably, the Controlled Substances Import
and Export Act, 21 U.S.C. §§ 951-71, we refer to the
Abner purchased the vessel in his
name in 1992. After a failed attempt to transfer title to the
vessel to his wife and brother, Abner executed a bill of sale
assigning ownership of the vessel to Mid- South. Abner, however,
never filed the bill of sale. The United States contends that
Abner did not adhere to the requirements for transferring title
to a vessel as outlined by Florida law, see Fla. Stat.
ch. 328.01(a), and that, consequently, Mid-South never obtained
title to the vessel. Because we affirm the district court's determination
that it lacked subject matter jurisdiction over this claim, we
need not reach the standing issue.
The law enforcement exception precludes
"[a]ny claim arising in respect of . . . the detention of
any goods or merchandise by any officer of the customs or excise
or any other law-enforcement officer." 28 U.S.C. §
2680(c) (2000). The Supreme Court has interpreted this exception
broadly to include "any claim `arising out of' the detention
of goods . . . includ[ing] a claim resulting from the negligent
handling or storage of detained property." Kosak v. United
States, 465 U.S. 848, 854, 104 S. Ct. 1519, 1523-24 (1984).
Our authority to order supplemental
briefing on this issue on appeal derives from our obligation
to inquire sua sponte into issues of subject matter jurisdiction.
See Rembert v. Apfel, 213 F.3d 1331, 1333 (11th
The issue whether to incorporate
the law enforcement exception into the SAA would be one of first
impression in this circuit, and, in light of precedent, a complex
one. In De Bardeleben Marine Corp. v. United States, 451
F.2d 140, 142-43 (5th Cir. 1971), a binding precedent, see
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc) (adopting all decisions of the former Fifth
Circuit as binding precedent), the court rejected the United
States' entreaty to incorporate into the SAA another of the FTCA's
exceptions for claims arising out of misrepresentations made
by the government, see 28 U.S.C. § 2680(h). In so
doing, the court intimated in dicta that none of the FTCA's exceptions
could be incorporated into the SAA. See De Bardeleben
Marine Corp., 451 F.2d at 145-46. Nonetheless, since that
decision, this circuit has joined the majority of others in incorporating
the FTCA's discretionary function exception. See Williams,
747 F.2d at 700. The district court that authored the decision
adopted by this circuit in Williams carefully circumvented
De Bardeleben Marine Corp. by predicating its holding
on the separation of powers doctrine, reasoning that "sound
principles of judicial restraint in the face of governmental
administrative activity dictate that cases involving discretionary
functions be removed from the jurisdiction of the courts."
Williams, 581 F. Supp. at 852. Courts that have considered
the propriety of incorporating the law enforcement exception,
however, have split. Compare B & F Trawlers, Inc.
v. United States, 841 F.2d 626, 628-29 (5th Cir. 1988) (declining
to incorporate the exception without mention of the De Bardeleben
Marine Corp. decision) with Green v. United States,
658 F. Supp. 749, 751 (S.D. Fla. 1987) (incorporating the exception,
also without mention of the De Bardeleben Marine Corp.
The Coast Guard's law enforcement
authority is analogous to that of the Customs Service:
The Coast Guard may make inquires,
examinations, inspections, searches, seizures, and arrests upon
the high seas and waters over which the United States has jurisdiction,
for the prevention, detection, and suppression of violations
of laws of the United States. For such purposes, commissioned,
warrant, and petty officers may at any time go on board of any
vessel subject to the jurisdiction, or to the operation of any
law, of the United States, address inquiries to those on board,
examine the ship's documents and papers, and examine, inspect,
and search the vessel and use all necessary force to compel compliance.
14 U.S.C. § 89(a) (2000).
Mid-South suggests the possible
existence of such guidelines and requests that, should we find
the discretionary function exception applicable in principle,
we remand the case to allow Mid-South an opportunity to conduct
sufficient discovery. We decline to do so. Even if, as Mid-South
conjectures, pertinent guidelines had required Customs Service
agents to exercise due care during their search, such a general
proviso would be insufficient to divest the agents of their discretion
in devising the course by which to conduct the search. Cf.
Irving v. United States, 162 F.3d 154, 163-64 (1st Cir.
1998) (en banc) (reviewing cases involving negligent inspection
claims and observing that only specific guidelines detailing
how an agent is to perform his or her inspection obviate that
Insofar as Mid-South separately
challenges the agents' failure to investigate the purpose of
the electrical cord before disconnecting it or to reconnect the
cord at the conclusion of their search, we find that these constitute
nothing more than purported abuses of the agents' discretion
in conducting the search and therefore, according to the terms
of the exception, are also not actionable. See 28 U.S.C.
§ 2680(a); Dalehite v. United States, 336 U.S. 33-34,
73 S. Ct. 956, 967 (1953).