Marx v. Government of Guam

Decision Date24 January 1989
Docket NumberNo. 87-2713,87-2713
Citation866 F.2d 294
PartiesRobert MARX, Plaintiff-Appellee, v. GOVERNMENT OF GUAM, Claimant-Appellant, and Two Wrecked and Abandoned Vessels, (believed to be the NUESTRA SENORA DEL PILAR and NUESTRA SENORA DEL BUEN VIAJE), etc.; in rem, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Richard L. Johnson, Kelmm, Blair, Sterling & Johnson, Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam.

Before WISDOM, * BOOCHEVER and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:



This in rem admiralty case concerns two Spanish galleons thought to have sunk off the coast of Guam in the seventeenth and eighteenth centuries. The issues are: (1) whether we have jurisdiction of this appeal under the collateral order doctrine, (2) whether the government of Guam ("Guam") has standing, and (3) whether Guam has sovereign immunity which precludes the exercise of federal jurisdiction over its claims to the wrecks.



Appellee Robert Marx ("Marx") and Guam believe the two shipwrecks are the remnants of the Nuestra Senora del Bien Viaje ("Viaje") and the Nuestra Senora del Pilar ("Pilar"). Both wrecks lie within three miles of the coast of Guam. Marx asserts that he is the first finder of the shipwrecks. Guam claims the two wrecks based on its "Protection and Recovery of Underwater Historic Property Act" which protects "underwater historic properties situated under the navigable waters and territorial seas of the territory." Guam Gov't Code Secs. 13985.29-.35 (Supp.1974) ("Underwater Historic Property Act"); see also 48 U.S.C. Sec. 1705 (1982) (generally conveying Marx and several others applied for exploration and recovery permits from Guam. Guam issued an exclusive permit on May 5, 1987 to Davey Jones Archeology, Ltd. Marx did not challenge this decision in Guam's territorial court. Instead, he filed the present in rem action in district court on June 10, 1987. A warrant of arrest for the wrecks was issued on June 17, 1987. On July 1, 1987, Guam made a special appearance in the district court for the limited purpose of moving for an order dismissing the action and vacating the warrant of arrest. Guam based its motion on its claim to sovereign immunity. The district court denied the motion. The court also entered a default judgment as to the Viaje because no one had filed a claim to that wreck under Supplemental Admiralty Rule C(6). Fed.R.Civ.P. C(6). Guam appeals from the denial of its motion to dismiss. 1

to Guam title to submerged lands within three miles of its shore).



Normally, a denial of a motion to dismiss is not final for purposes of 28 U.S.C. Sec. 1291. See In re Benny, 791 F.2d 712, 718 (9th Cir.1986). Guam claims that the district court's denial of its motion to dismiss falls within the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see also Nixon v. Fitzgerald, 457 U.S. 731, 742, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349 (1982). We agree.

Denials of immunity claims can qualify for immediate review under Cohen. Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 2814-16, 86 L.Ed.2d 411 (1985) (qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982) (absolute immunity). The Court has explained that: "[T]he denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Mitchell, 472 U.S. at 525, 105 S.Ct. at 2815.

Guam claims absolute immunity. It asserts the right to be free from the "crippling interferences" of litigation. See Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 53-54, 64 S.Ct. 873, 876-77, 88 L.Ed. 1121 (1944) (citing numerous cases including Kawananakoa v. Polyblank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834 (1907)). Cf. Lojuk v. Johnson, 770 F.2d 619, 621 (7th Cir.1985) (absolute immunity is the right to be "free from suit, regardless of culpability"), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986).

We conclude that the district court's denial of Guam's sovereign immunity claim is an appealable collateral order under Cohen, Mitchell and Nixon. 2 See also Compania Mexicana de Aviacion, S.A., 859 F.2d 1354, 1356, 1358 (9th Cir.1988) (per curiam) (foreign sovereign immunity). We have jurisdiction to hear this appeal.



Marx argues, and the district court held, that Guam lacked standing to bring its motion to dismiss because Guam failed A "claimant" in the admiralty practice ... is a person who assumes the position of a defendant and demands the redelivery to himself of the vessel arrested. An "intervenor" ... is one who, without demanding the redelivery of the vessel, seeks only the protection of his interest in her, or the payment of his claim in the ultimate disposition of the case.

                to file a claim pursuant to Supplemental Admiralty Rule C(6). 3   This rule specifies the procedure "claimants" must use to file a claim in an admiralty in rem action.  Fed.R.Civ.P. C(6).  By its terms, Rule C(6) only applies to "claimants."    In the context of this rule, a "claimant" means a traditional contestant who assumes the position of a defendant in an action.  As one commentator explained

7A J. Moore & A. Pelaez, Moore's Federal Practice p C.16 (2d ed. 1976); see also United States v. Beechcraft Queen Airplane, 789 F.2d 627, 629-30 (8th Cir.1986).

Guam specially appeared and intervened solely to challenge the district court's jurisdiction. We construe Guam's special appearance and motion to dismiss as a motion to intervene for the limited purpose of challenging the court's jurisdiction. See Fed.R.Civ.P. 1, 8(f) (requiring federal courts to construe pleadings so as to do substantial justice). We hold that the motion was proper under Rule 24. Fed.R.Civ.P. 24; see also California v. Tahoe Regional Planning Agency, 792 F.2d 775, 778 (9th Cir.1986); Washington State Building and Construction Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir.1982) ("Rule 24 traditionally has received a liberal construction in favor of applicants for intervention."), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

In moving to dismiss, Guam did not assume the position of a normal defendant nor did it seek to adjudicate its claim to the wrecks. Instead, it relied on cases which have permitted governments to assert an immunity defense and move to dismiss without filing C(6) claims. See, e.g., Maritime Underwater Surveys v. Unidentified Vessel, 717 F.2d 6, 7 (1st Cir.1983); Subaqueous Exploration and Archeology, Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597, 600 (D.Md.1983). This reliance was reasonable. Cf. United States v. An Undetermined Quantity of an Article of Drug Labeled as Benylin Cough Syrup, 583 F.2d 942, 949-50 n. 9 (7th Cir.1978) (allowing intervention under 21 U.S.C. Sec. 334(d) despite failure to file as a C(6) claimant).

We conclude that Guam has standing to assert its sovereign immunity claim notwithstanding its failure to file a claim to the wrecks pursuant to Supplemental Admiralty Rule C(6). We next consider Guam's sovereign immunity claim.




The Supreme Court and this court have recognized that territorial governments have a form of inherent or common law sovereign immunity. In Crain v. Guam, 195 F.2d 414 (9th Cir.1952), we affirmed the dismissal of a challenge to Guam's income tax system. We based our decision on the sovereign immunity of Guam. Crain relied on Supreme Court authority holding that Hawaii and Puerto Rico have or had inherent sovereign immunity. Id. at 415-17 (applying Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527 Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends....

51 L.Ed. 834 (1907) (Hawaii), and Porto Rico v. Rosaly, 227 U.S. 270, 273, 33 S.Ct. 352, 353, 57 L.Ed. 507 (1913) (Puerto Rico)). In our Crain decision, we quoted extensively from Kawananakoa:

As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights.

Crain, 195 F.2d at 416; see also Rosaly, 227 U.S. at 273-74, 33 S.Ct. at 353. We concluded in Crain that Guam "meets this test." Crain, 195 F.2d at 416.

Although the Guam Organic Act does not expressly grant broad immunity, the legislative history of the 1959 amendment to the Act indicates that both Congress and the Executive Branch believed that Guam had inherent sovereign immunity. The 1959 amendment added the provision that:

The Government of Guam ... with the consent of the legislature evidenced by enacted law, may be sued upon any contract entered into with respect to, or any tort committed incident to, the exercise by the government of Guam of any of its lawful powers.

48 U.S.C. Sec. 1421a (1982). The Senate Report on the amendment suggested that Guam already had sovereign immunity and that the amendment only served to provide a potential limitation of that immunity. S.Rep....

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