Harrell v. U.S.

• Decision Date: 06 April 2006
• Docket Number: No. 05-3179.,05-3179.
• Citation: 443 F.3d 1231
• Parties: Richard HARRELL; Charlene Harrell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee, v. Patricia Ann Phillippe; Roger Phillippe, in personam; Glastron Motor Boat, Mfg. No. 1433018, its engines, apparel, tackle, appurtenances, etc., in rem, Third Party Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

443 F.3d 1231

Richard HARRELL; Charlene Harrell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee, v. Patricia Ann Phillippe; Roger Phillippe, in personam; Glastron Motor Boat, Mfg. No. 1433018, its engines, apparel, tackle, appurtenances, etc., in rem, Third Party Defendants.

No. 05-3179.

United States Court of Appeals, Tenth Circuit.

April 6, 2006.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs. William J. Pauzauskie, Topeka, Kansas, Ernest C. Baynard, III, John A.C. Cartner, Baynard & Cartner, Washington, D.C., for Plaintiffs-Appellants.

Peter D. Keisler, Assistant Attorney General, Eric F. Melgren, United States Attorney, Peter F. Frost, Acting Assistant Director, Admiralty, Damon C. Miller, Attorney, U.S. Department of Justice, Torts Branch, Civil Division, Washington, D.C., for Defendant-Third Party Plaintiff-Appellee.

Before LUCERO, EBEL, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

This appeal is from the district court's decision dismissing for lack of subject matter jurisdiction appellants' suit against the United States under the Suits in Admiralty Act, 46 App. U.S.C. §§ 741-52. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm the district court's dismissal for lack of subject matter jurisdiction on the basis of the reasoning expressed by that court.¹ The district court did not address appellants' arguments based on the River and Harbors Act of 1899, 33 U.S.C. § 33, and its attendant permitting process because those issues were not presented to that court. These arguments are now waived.

The district court correctly found that the discretionary function exception to the waiver of sovereign immunity implied in the Suits in Admiralty Act insulates the United States from liability in this case. We agree fully with the well-reasoned opinion of the district court and, as we have on other appropriate occasions, we formally adopt the decision, attached as an appendix hereto, as our own. See, e.g., Hollytex Carpet Mills, Inc. v. Okla, Employment Sec. Comm'n (In re Hollytex Carpet Mills, Inc.), 73 F.3d 1516, 1518 (10th Cir.1996).

Appellants argue that they raised the Rivers and Harbors Act issue in the district court and point to a paragraph in their district court brief to support this position. That reference, however, is to dicta in a Fourth Circuit case citing the Act. Appellants did not develop any argument in the district court based on the Act or its permitting process. Vague, arguable references to an issue are insufficient for preservation on appeal. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir.1993). Appellants "may not try the case on one theory and appeal on another." Id. at 723.

The judgment of the district court is AFFIRMED.

APPENDIX

                IN THE UNITED STATES
                DISTRICT COURT
                DISTRICT OF KANSAS
                Richard Harrell and Charlene Harrell
                Plaintiffs
                v
                Case No. 03-2374-JWL
                United States of America
                Defendant/Third Party Plaintiff
                v.
                Patricia Ann Phillippe and Roger Phillippe,
                in personam, and the Glastron
                Motor Boat, Mfg. No. 1433018, Its Engines,
                Apparel, Tackle, Appurtenances,
                etc., in rem,
                Third-Party Defendants.
                

MEMORANDUM & ORDER

In June 2002, plaintiff Richard Harrell was tubing on the Missouri River near Atchison, Kansas when he "alided"² with a submerged buoy placed in the river by the United States Coast Guard, resulting in serious injury to Mr. Harrell. Thereafter, plaintiffs filed suit under the Suits in Admiralty Act (SAA), 46 U.S.C.App. § 741 et seq., alleging that the United States negligently failed to maintain the buoy in proper condition and failed to warn mariners that the buoy had become a hazard to navigation. This matter is presently before the court on defendant's motion to dismiss plaintiffs' action for lack of subject matter jurisdiction (doc. # 58) and plaintiffs' motion for summary judgment as to liability (doc. # 62). As explained in more detail below, the court concludes that the actions of the Coast Guard were discretionary functions exempt from SAA liability and, thus, grants defendants' motion to dismiss. Plaintiffs' motion for summary judgment, then, is rendered moot.

The United States, as sovereign, is immune from suit unless it waives its sovereign immunity and consents to be sued. See, e.g., United States v. Thompson, 98 U.S. 486, 489, 25 L.Ed. 194 (1878). Absent express waiver of sovereign immunity, federal courts lack subject matter jurisdiction over suits against the United States. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). In the Suits in Admiralty Act (SAA), the United States waives its sovereign immunity from suit for maritime torts committed by its agents. See 46 U.S.C.App. § 742; Tew v. United States, 86 F.3d 1003, 1005 (10th Cir.1996). The SAA contains no express exceptions to the waiver of sovereign immunity. In contrast, the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), which waives sovereign immunity for tort claims against the United States, contains an express exception with respect to claims "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 government." Tew, 86 F.3d at 1005 (quoting 28 U.S.C. 2680(a)). The Tenth Circuit has held that a similar discretionary function exception is to be implied into the SAA. See id.

The Supreme Court has set forth a two-part test to determine whether conduct is encompassed by the discretionary function exception and thereby immunized from SAA liability. See Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (FTCA context); Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir. 2003) (applying Berkovitz test in SAA context). The court must first consider whether the challenged conduct was "discretionary," meaning whether it was "a matter of judgment or choice for the acting employee." See Lopez v. United States, 376 F.3d 1055, 1057 (10th Cir.2004) (citing Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). If the court finds that it was, the court must then consider whether it was the type of decision the discretionary function exception was designed to protect, namely one requiring the exercise of judgment based on considerations of public policy. See id. (citing Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954).

Plaintiffs' Negligent Failure-to-Maintain Claim

To prevail on the first prong of the Berkovitz test, plaintiffs must demonstrate that the challenged conduct involved "no element of judgment or choice." See Elder v. United States, 312 F.3d 1172, 1176-77 (10th Cir.2002). In that regard, plaintiffs must show that the Coast Guard "violated a federal statute, regulation, or policy that is both specific and mandatory." See id. (citing Aragon v. United States, 146 F.3d 819, 823 (10th Cir.1998)). Plaintiffs direct the court to no statute, regulation or policy mandating that the Coast Guard maintain buoys (or any other aids to navigation) in any particular manner. In fact, federal statutes make the maintenance of aids to navigation entirely discretionary. See 14 U.S.C. § 81 ("In order to aid navigation and to prevent disasters, collisions, and wrecks of vessels and aircraft, the Coast Guard may establish, maintain, and operate . . . aids to maritime navigation.") (emphasis added). Congress, then, has not imposed on the Coast Guard a mandatory duty to maintain buoys. Similarly, applicable Coast Guard regulations reserve to the agency considerable discretion in maintaining aids to navigation:

Although aids to navigation are maintained to a reasonable degree of reliability, the rigors of the marine environment and various equipment failures do cause discrepancies on occasion.

The Coast Guard makes reasonable efforts to inform the navigator of known discrepancies, and to correct them within a reasonable period of time, depending upon resources available.

33 C.F.R. § 62.21(f) & (g). Certainly, nothing in the regulations requires the Coast Guard to service a buoy within a specific period of time. Finally, nothing in the Coast Guard's internal Aid to Navigation Manual limits the Coast Guard's discretion with respect to the maintenance of buoys.³ Because no statute, regulation or policy specifically prescribed a course of action for the Coast Guard to follow with respect to servicing the buoy, the challenged conduct is discretionary under the first prong of the Berkovitz test. See Elder, 312 F.3d at 1180; see also Smith v. United States, 251 F.Supp.2d 1255, 1261 (D.Md.2003) (Coast Guard's conduct regarding maintenance of an aid to navigation involves an element of judgment or choice).

Having concluded that decisions regarding the service and maintenance of the buoy involved discretionary judgment, the court turns to the second prong of the Berkovitz test and considers whether that judgment is of the kind that the discretionary function exception was designed to shield. See Elder, 312 F.3d at 1180-81. The Supreme Court clarified the second prong of the Berkovitz test in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). See Lopez, 376 F.3d at 1057 (citing Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). When making the second inquiry, the court is not to consider the subjective intent of the particular actor or whether he or she was animated by a concern for public policy. Id. (citing Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). Rather, the court must consider whether the nature of the actions taken implicate public policy concerns, or are "susceptible to policy analysis." Id. (citing Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). The court need not find that a government employee made a conscious decision regarding policy considerations in order to satisfy the second prong of the Berkovitz test. See id. (citing Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir.1993)). The pertinent inquiry is whether the...