Mid-South Holding Co. v. U.S., MID-SOUTH

• Citation: 225 F.3d 1201
• Decision Date: 01 September 2000
• Docket Number: No. 99-2488,MID-SOUTH
• Parties: (11th Cir. 2000) HOLDING COMPANY, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1201

225 F.3d 1201 (11th Cir. 2000)

MID-SOUTH HOLDING COMPANY, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 99-2488.

United States Court of Appeals, Eleventh Circuit.

September 1, 2000.

September 14, 2000.

Appeal from the United States District Court for the Middle District of Florida.(no. 97-00877-CIV-J-10A), Wm. Terrell Hodges, Judge.

Before BLACK, CARNES and KRAVITCH, Circuit Judges.

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 HISTORY

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.App. 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 appeal followed.

II. ANALYSIS

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, 85 L.Ed. 1058 (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, 135 L.Ed.2d 486 (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.App. 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. 2680(c)³-should 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, 113 L.Ed.2d 335 (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, 100 L.Ed.2d 531 (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 antinarcotics 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 activities.

In a case involving the destruction of a vessel following its apprehension by the Coast...