Rappenecker v. United States, C-76-0298-WWS
| Decision Date | 08 July 1980 |
| Docket Number | C-76-0422-WWS,C-77-0565-WWS and C-77-0939-WWS.,No. C-76-0298-WWS,C-76-0298-WWS |
| Citation | 509 F. Supp. 1024 |
| Court | U.S. District Court — Northern District of California |
| Parties | Alfred J. RAPPENECKER, Albert Minichiello, Darryl V. Kastl, Frank Conway, and Raymond Paul Friedler, Jr., Plaintiffs, v. UNITED STATES of America, Defendant. Carol A. SCHMIDT, As Administratrix of the Estate of Earl C. Gilbert, Plaintiff, v. UNITED STATES of America, Defendant. Juan P. SANCHEZ and Wilbert N. Bock, Plaintiffs, v. UNITED STATES of America, Defendant. Francis PASTRANO, Plaintiff, v. UNITED STATES of America, Defendant. |
Martin J. Jarvis, Jarvis, Miller, Brodsky & Baskins, Inc., San Francisco, Cal., for plaintiffs.
G. William Hunter, U. S. Atty., Philip A. Berns, Warren A. Schneider, Attys., Torts Branch, Civil Division, Dept. of Justice, San Francisco, Cal., John Perruzzi, Defence Mapping Agency, William E. Gwatkin, III, Admiralty & Shipping Section, U. S. Dept. of Justice, Washington, D. C., for defendant.
These are actions by former crewmen of the S. S. Mayaguez against the United States under the Suits in Admiralty Act (SIAA), 46 U.S.C. Section 742. Jurisdiction exists under 28 U.S.C. Section 1333(1). Plaintiffs seek damages for personal injuries allegedly suffered during United States military operations in response to the seizure of the Mayaguez by Cambodian gunboats on May 12, 1975. They advance two theories of liability against the government: (1) negligence in undertaking and executing the military operation and (2) breach of a duty to warn the Mayaguez of the danger of such a capture.1
At a status conference on December 28, 1979, the Court directed plaintiffs to show cause why it had jurisdiction of the claims stated. The parties filed memoranda and affidavits and appeared at a hearing on February 29, 1980. At that hearing the Court expressed its tentative view that the claim of negligence by the government in connection with the military operation presented a nonjusticiable political question. At the Court's invitation, the parties then submitted supplementary pleadings on the propriety of summary judgment in favor of the government.
The Mayaguez, a privately owned cargo vessel operating under American registry was seized by Cambodian gunboats on May 12, 1975, as it passed within 3 miles of the Poulo Wai Islands in the Gulf of Thailand, 60 miles from the Cambodian coast. The ship had departed Hong Kong on May 8, bound for Sattahip, Thailand, carrying United States military cargo and other freight. At the time, Cambodia, as well as Thailand and Vietnam, claimed sovereignty over the Poulo Wai Islands.
Immediately after learning of the seizure, the United States government undertook surveillance of the Mayaguez and its crew, who were being held on the nearby Cambodian island of Koh Tang. On May 13, after making demands for return of the vessel and the crew through the media and diplomatic channels, President Ford "directed the United States Armed Forces to isolate the island and interdict any movement between the ship or the island and the mainland, and to prevent movement of the ship itself, while still taking all possible care to prevent loss of life or injury to the U.S. captives." (Letter dated May 15, 1975, from President Ford to the Speaker of the House.) Plaintiffs claim that they were injured during engagements between U.S. military aircraft and the boat on which the crew of the Mayaguez was being transported from Koh Tang Island to the mainland.
Plaintiffs have alleged that agencies of the United States had notice, before the Mayaguez left Hong Kong for Sattahip, of similar hostile acts by Cambodia against vessels in waters near the Poulo Wai Islands. In traveling near the Poulo Wai Islands, the Mayaguez followed a trade route described in official publications of the United States government. Means were available to the government to warn ships in port at Hong Kong or at sea, by radio, of the risk of attack or seizure. No such warning was broadcast in advance of the seizure of the Mayaguez.
Plaintiffs argue that the government may be held liable under the SIAA for negligence in undertaking and executing the military operations. This claim raises two issues: (1) whether it is barred by an implied "discretionary function" exception to the waiver of sovereign immunity in the SIAA and (2) whether it presents nonjusticiable political questions.
Had this action been brought before 1960, a district court could only have entertained it under the Federal Tort Claims Act (FTCA) which contained an exception for claims based upon the performance of discretionary functions of government. 28 U.S.C. Section 2680(a). In 1960, Congress amended SIAA to eliminate conflict and confusion concerning the respective jurisdiction of the district courts and Court of Claims over actions against the government arising out of admiralty matters. See the discussion in De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 143-44 (5th Cir. 1971). As a result of the amendment, the district courts were given jurisdiction over "cases against the government where ... if a private person or property were involved, a proceeding in admiralty could be maintained ..." 46 U.S.C. Section 742. Referring to the legislative history of the amendment, the court in De Bardeleben said:
The Senate Report indicates that the purpose "of the amendments is to make as certain as possible that suits brought against the United States for damages caused by vessels and employees of the United States through breach of contract or tort can be originally filed in the correct court so as to proceed to trial promptly on their merits." And in another part of the Report we learn that the purpose of the bill, as amended, is to authorize the transfer of cases between the U.S. district courts and the Court of Claims, and vice versa. "The bill also clarifies confusing language now existing in section 2 of the Suits in Admiralty Act." Senate Report, supra, at p. 3583. 451 F.2d at 145.
The effect of the amendments, enacted to achieve these purposes, was to extend the waiver of sovereignty to cases brought against the United States under the SIAA. In taking this action, Congress was silent on whether the exceptions which would have applied had the case been brought under the FTCA would apply under the SIAA.
The issue whether the discretionary function exception found in the FTCA should be implied under the SIAA has been addressed by four courts of appeals. The First and Seventh Circuits have held that such an exception must be implied. Bearce v. United States, 614 F.2d 556, 559-60 (7th Cir. 1980); Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977). In doing so, they relied on the narrow purpose of the 1960 amendment to eliminate jurisdictional conflict and confusion, and on the uncalled-for results should the many legislative and administrative judgments concerning the public interest in maritime matters be subject to independent judicial review. See also United States v. United Continental Tuna Corp., 425 U.S. 164, 176, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976), commenting on the limited purpose of the 1960 amendments.
The Fourth Circuit, in Lane v. United States, 529 F.2d 175 (4th Cir. 1975), stated that a discretionary function exception could not be imported into the SIAA. It did so, however, without discussion of the considerations on which the First and Seventh Circuits relied. The statement may, in any event, have been unnecessary to the decision because other provisions of law imposed a duty on the United States to mark sunken vessels. Finally, in De Bardeleben, supra, the Fifth Circuit rejected importation of the discretionary function exception in what clearly was dictum. 451 F.2d at 146.2
The question appears to be one of first impression in this circuit. The Court is persuaded by the reasoning of the Bearce and Gercey decisions. To subject to judicial scrutiny policy decisions made at the highest level of government simply because the action was brought under the SIAA rather than the FTCA would go far beyond the limited purpose of the 1960 amendments and lead to "an intolerable state of affairs." Gercey, supra, 540 F.2d at 539.
Having determined that an exception for discretionary functions must be implied under the SIAA, the Court finds that the decision to undertake the rescue operation and its execution fall within that exception. The decision itself involved a "basic policy judgment as to the national interest," see Gercey v. United States, supra, 540 F.2d at 539; the discretionary function exception which immunizes that decision against judicial scrutiny extends also to acts of subordinates in carrying it out according to official directions. See Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953).
Plaintiffs' claims based on the government's alleged negligence in the conduct of the rescue operation are therefore not actionable under the SIAA.
An alternate ground for dismissing the claims based on the conduct of the military operations is that these claims present nonjusticiable questions. Under the political question doctrine, nonjusticiability is "primarily a function of the separation of powers." Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). In that decision, the Supreme Court defined the elements which serve to identify nonjusticiable political questions:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of...
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