Tobar v. U.S.

• Citation: 639 F.3d 1191
• Decision Date: 21 April 2011
• Docket Number: No. 08–56756.,08–56756.
• Parties: Oswaldo Enrique TOBAR; Rosa Carmelina Zambrano Lucas; Junior Ivan Pico Alava; Segundo Matias Zambrano Alonzo; Francisco Gabriel Yole Arteago; Fausto Lupercio Arias Castaneda; Frabricio Bayron Cedeno; Joffre Johnny Cedeno Cedeno; Lindon Cleofe Cedeno Cedeno; Ramon Eliades Ramon Velez Cedeno; Daniel David Quimi Chalen; Pablo Eduardo Lucas Conforme; Ramon Eduardo Pilligua Conforme; Ciro Mariano Lopez Mero; Pedro Manuel Lopez Mero; Jose Eduardo Lucas Mero; Luis Antonio Penafiel Mero; Pedro Jose Reyes Mero; Telmo Arcadio Chica Obando; Luis Miguel Cedeno Pico; Jaime Gustavo Palma Pinargote; Yardy Klever Flores Segovia; Pacho Hernandez Solorzano; Carlos Wilfrido Veliz Velez; Carlos Orlando Velez Zambrano, and Jose Luis Zambrano, Zambrano, Plaintiffs–Appellants,v.UNITED STATES of America, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

639 F.3d 1191

11 Cal. Daily Op. Serv. 4712

2011 Daily Journal D.A.R. 5656

Oswaldo Enrique TOBAR; Rosa Carmelina Zambrano Lucas; Junior Ivan Pico Alava; Segundo Matias Zambrano Alonzo; Francisco Gabriel Yole Arteago; Fausto Lupercio Arias Castaneda; Frabricio Bayron Cedeno; Joffre Johnny Cedeno Cedeno; Lindon Cleofe Cedeno Cedeno; Ramon Eliades Ramon Velez Cedeno; Daniel David Quimi Chalen; Pablo Eduardo Lucas Conforme; Ramon Eduardo Pilligua Conforme; Ciro Mariano Lopez Mero; Pedro Manuel Lopez Mero; Jose Eduardo Lucas Mero; Luis Antonio Penafiel Mero; Pedro Jose Reyes Mero; Telmo Arcadio Chica Obando; Luis Miguel Cedeno Pico; Jaime Gustavo Palma Pinargote; Yardy Klever Flores Segovia; Pacho Hernandez Solorzano; Carlos Wilfrido Veliz Velez; Carlos Orlando Velez Zambrano, and Jose Luis Zambrano, Zambrano, Plaintiffs–Appellants,

v.UNITED STATES of America, Defendant–Appellee.

No. 08–56756.

United States Court of Appeals, Ninth Circuit.

Argued Feb. 4, 2010.Resubmitted March 22, 2011.Filed April 21, 2011.

Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, for the plaintiffs-appellants.R. Scott Blaze and R. Michael Underhill, United States Department of Justice, San Francisco, CA, for the defendant-appellee.Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. 3:07–cv–00817–WQH–WMC.Before: BETTY B. FLETCHER, HARRY PREGERSON, and SUSAN P. GRABER, Circuit Judges.

OPINION

GRABER, Circuit Judge:

Plaintiffs are Ecuadorian crew members of a fishing boat. The United States Coast Guard saw their boat in international waters near the Galapagos Islands and suspected it of involvement with smuggling drugs. The Coast Guard stopped Plaintiffs' boat and boarded it. Tests performed on the vessel yielded suspicious but inconclusive results and, with the consent of the Ecuadorian government, the Coast Guard towed the boat to Ecuador. Further tests conducted by the Ecuadorian government uncovered no contraband, and no charges were filed against Plaintiffs.

Plaintiffs then sued the United States for damages resulting from these events. The district court held that the United States had not waived its sovereign immunity over this action and, accordingly, dismissed the action. Reviewing de novo, Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir.2009), we affirm in part, vacate in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

Because the district court dismissed this action on the pleadings, we take as true the allegations of the complaint. Cell Therapeutics Inc. v. Lash Grp. Inc., 586 F.3d 1204, 1206 n. 2 (9th Cir.2010). Plaintiffs allege that, “[o]n or about October 5, 2005 in international waters off the Galapagos Islands in the Pacific Ocean the agents of the [United States] unlawfully and negligently, stopped, searched, arrested, detained and imprisoned the Plaintiffs, seized the boat, destroyed the cargo and fish owned by [some] Plaintiffs ... for allegedly smuggling and possessing illegal drugs.” Plaintiffs seek damages of slightly more than $5 million for unlawful imprisonment, humiliation, pain and suffering, destruction of personal property, loss of their catch, loss of the use of the vessel, and public ridicule.

The United States filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the ground that the United States has not waived sovereign immunity. The district court agreed and dismissed this action. Plaintiffs timely appeal.

DISCUSSION

The primary question before us is whether the United States has waived sovereign immunity. “We will consider the issue of sovereign immunity on the merits because it can be raised at any time by the government, as it goes to a court's jurisdiction.” IRS v. Fed. Labor Relations Auth., 521 F.3d 1148, 1152 (9th Cir.2008).¹

“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation, alterations, and internal quotation marks omitted). The waiver of sovereign immunity is a prerequisite to federal-court jurisdiction. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). “[L]imitations and conditions upon which the [United States] Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). “Federal sovereign immunity insulates the United States from suit ‘in the absence of an express waiver of this immunity by Congress.’ ” Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009) (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983)).

In their complaint, Plaintiffs offered a number of sources of an alleged waiver of sovereign immunity by the United States. Plaintiffs also filed a motion to amend their complaint to add two additional sources. The district court denied the motion on the ground that the proposed amendment could not cure the sovereign-immunity defect. Like the district court, we consider all sources. Those sources include: the Public Vessels Act (“PVA”), 46 U.S.C. §§ 31101–31113; the Suits in Admiralty Act (“SAA”), 46 U.S.C. §§ 30901–30918; ² the Federal Tort Claims Act (“FTCA”); the Alien Tort Statute, 28 U.S.C. § 1350; the Military Claims Act, 10 U.S.C. §§ 2731– 2739; a regulation, 49 C.F.R. § 1.46(b); the Convention on the Law of the Sea; the International Covenant on Civil and Political Rights (“ICCPR”); a bilateral treaty between Ecuador and the United States concerning the use of an Air Force base at Manta, Ecuador; and a letter from the United States embassy to the Ecuadorian government requesting permission to board Plaintiffs' vessel.

A. Non–Congressional Sources

The regulation and the letter are not acts of Congress, so they cannot effect a waiver of sovereign immunity. United States v. Park Place Assocs., Ltd., 563 F.3d 907, 934 (9th Cir.2009). Additionally, we note that the regulation contains no relevant information and does not pertain to sovereign immunity. Similarly, the letter does not mention sovereign immunity and, as noted, even if it implies that sovereign immunity would be waived, implied waivers are ineffective. Mitchell, 445 U.S. at 538, 100 S.Ct. 1349.

B. Military Claims Act, Alien Tort Statute, and Treaties

The Military Claims Act does not mention, and therefore does not waive, sovereign immunity. See Murphy ex rel. Estate of Payne v. United States, 340 F.Supp.2d 160, 171 (D.Conn.2004) (“The [Military Claims Act] does not waive the Government's sovereign immunity, but instead merely authorizes the Secretary to settle claims (including disallowing claims) at his or her discretion and under such regulations as the Secretary may prescribe.”), adopted, 427 F.3d 158, 159 (2d Cir.2005) (per curiam) (“We affirm on the well-reasoned opinion of the District Court.”).

“[T]he Alien Tort Statute has been interpreted as a jurisdiction statute only—it has not been held to imply any waiver of sovereign immunity.” Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.1992) (citing Sanchez–Espinoza v. Reagan, 770 F.2d 202, 207 (D.C.Cir.1985); Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980)). “Thus, any party asserting jurisdiction under the Alien Tort Statute must establish, independent of that statute, that the United States has consented to suit.” Id.

The United States has signed, but has not ratified, the Convention on the Law of the Sea. In the absence of congressional action, the Convention does not waive sovereign immunity.

The United States has ratified the ICCPR. But that treaty is not self-executing and therefore “did not itself create obligations enforceable in the federal courts.” Sosa v. Alvarez–Machain, 542 U.S. 692, 735, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

Finally, the bilateral treaty concerning the Air Force base at Manta, Ecuador, concerns, naturally enough, the Air Force base at Manta, Ecuador, which played no part in the Coast Guard's actions here. The treaty does not mention the Coast Guard, payment for the types of damage alleged by Plaintiffs, judicial remedies, or sovereign immunity. That being so, the treaty does not waive the United States' sovereign immunity.

C. The Public Vessels Act, Suits in Admiralty Act, and Federal Tort Claims Act

Each of these three Acts provides an explicit waiver of sovereign immunity. The PVA waives sovereign immunity for suits for “damages caused by a public vessel of the United States.” 46 U.S.C. § 31102(a)(1). But the PVA contains a reciprocity requirement: A national of a foreign country may sue under the PVA only if the government of that foreign country would permit a United States national to bring the same suit in its courts. Id. § 31111. The SAA waives sovereign immunity, subject to some exceptions, in admiralty cases when a civil action could otherwise be brought if the United States were not a party. Id. § 30903(a); see Earles v. United States, 935 F.2d 1028, 1032 (9th Cir.1991) (recognizing a “discretionary function exception” to that waiver). Finally, the FTCA waives sovereign immunity in tort actions brought against the United States, subject to certain exceptions listed in 28 U.S.C. § 2680.

Because each of those three Acts provides a separate, explicit waiver of sovereign immunity, one might expect that any of the three waivers would suffice. For example, one would think that a claim brought under the SAA could proceed if the waiver requirements for that Act were met. For historical reasons, however, that is not how the Acts work together.

In ...