Tobar v. United States

731 F.3d 938

Oswaldo Enrique TOBAR; Rosa Carmelina Zambr 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 V Cedeno; Daniel David Quimi Chalen; Pablo Eduardo Lucas Conforme; Ramon Eduardo Pilligu Conforme; Ciro Mariano Lopez Mero; Pedro Manuel Lopez Mero; Jose Eduardo Lucas Mero; Luis Antonio Penafie 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; Jose Luis Zambrano Zambrano; Carlos Orlando Velez Zambrano, Plaintiffs–Appellants,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–56298.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 23, 2013.

Filed Sept. 25, 2013.

Walter L. Boyaki (argued), Boyaki Law Firm, El Paso, TX, for Plaintiffs–Appellants.

R. Scott Blaze (argued), Senior Admiralty Counsel, Stuart Delery, Acting Assistant Attorney General, and R. Michael Underhill, Attorney in Charge, Torts Branch, Civil Division, United States Department of Justice, San Francisco, CA, for 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: HARRY PREGERSON, SUSAN P. GRABER, and MORGAN CHRISTEN, Circuit Judges.

OPINION

GRABER, Circuit Judge:

Patrolling in international waters, the United States Coast Guard suspected the crew of an Ecuadorian fishing boat of illicit activities. With the authorization of Ecuadorian authorities, the Coast Guard boarded the boat, searched for drugs, and towed the boat to Ecuador. The Ecuadorian crew, who are Plaintiffs here, allege that agents of Defendant United States harmed Plaintiffs and their property in violation of the Federal Tort Claims Act (“FTCA”), the Suits in Admiralty Act (“SAA”), and the Public Vessels Act (“PVA”). The district court held that the government had not waived its sovereign immunity, and it dismissed the case. In an earlier appeal, we affirmed in part, vacated in part, and remanded for further proceedings. Tobar v. United States, 639 F.3d 1191 (9th Cir.2011). In particular, we remanded for the district court to accept further evidence and briefing on the issue whether reciprocity with Ecuador exists—a statutory condition under 46 U.S.C. § 31111 to the government's waiver of sovereign immunity. Id. at 1200.

On remand, the parties submitted, among other documents, affidavits by experts in Ecuadorian law. Unpersuaded that reciprocity exists, the district court again held that the government had not waived its sovereign immunity. The district court also held, in the alternative, that Plaintiffs' claims fell within the “discretionary function exception” to the government's waiver of sovereign immunity. Plaintiffs timely appeal the judgment dismissing the action.

We review de novo whether the government has waived its sovereign immunity. Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir.2009). We disagree with the district court's analysis of the experts' affidavits. We hold that, on the evidence submitted by the parties, reciprocity with Ecuador exists. We agree with the district court that the “discretionary function exception” applies generally to Plaintiffs' claims, because most of the actions by the Coast Guard were discretionary. But we hold that, under the facts here, the government may have violated its non-discretionary policy of paying damages to the owner of the boat. To the extent that Plaintiffs can establish that the United States violated that mandatory obligation, sovereign immunity does not bar this action. Accordingly, we affirm in part, vacate in part, and remand for further proceedings.

DISCUSSION

We must determine whether reciprocity with Ecuador exists and, if so, whether the discretionary function exception bars Plaintiffs' claims. We address those issues in turn.¹

A. Reciprocity with Ecuador

The PVA's waiver of sovereign immunity is conditioned on the following reciprocity requirement:

A national of a foreign country may not maintain a civil action under this chapter unless it appears to the satisfaction of the court in which the action is brought that the government of that country, in similar circumstances, allows nationals of the United States to sue in its courts.

46 U.S.C. § 31111. As we held in the first appeal, where, as here, the suit falls within the scope of the PVA, claims brought under the FTCA and SAA also must meet that reciprocity requirement. Tobar, 639 F.3d at 1197 (citing United States v. United Cont'l Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976), and Taghadomi v. United States, 401 F.3d 1080 (9th Cir.2005)).

The relevant question is whether Ecuador, “in similar circumstances, allows nationals of the United States to sue in its courts.” 46 U.S.C. § 31111. The determination of foreign law is a legal question. Tobar, 639 F.3d at 1200.

Plaintiffs originally submitted evidence only that Ecuador has an “open court” system and that foreigners have equal access to the courts. We held that those statements were insufficient because they failed to address whether Ecuador would assert sovereign immunity: “The documents demonstrate that a foreign citizen can bring suit to the same extent as an Ecuadorian citizen, but the documents do not address the key issue here: whether the Ecuadorian government would waive sovereign immunity in similar circumstances.” Id. at 1199.

On remand, Plaintiffs submitted affidavits by three experts in Ecuadorian law, and the government submitted an affidavit by one such expert. Neither party challenges the experts' credentials.

Plaintiffs' experts made two new points. First, according to Plaintiffs' experts, the concept of “sovereign immunity” as understood in common-law nations does not exist in Ecuadorian law, because Ecuador is a civil-law nation. Second, Plaintiffs' experts stated that, accordingly, there would be no legal impediment to a United States citizen's suing the Ecuadorian government in similar circumstances; reciprocity exists.

Those affidavits establish that, in similar circumstances, a United States citizen would be able to sue Ecuador in Ecuadorian courts. Accordingly, reciprocity exists. 46 U.S.C. § 31111.

The government's arguments to the contrary are unpersuasive. On the first point, concerning the existence of sovereign immunity in Ecuadorian law, the government asserts that sovereign immunity does indeed exist in Ecuadorian law, and it faults Plaintiffs' experts for providing “unsupported” conclusions to the contrary. But the affidavits themselves are support—they are sworn statements by legal experts on Ecuadorian law. SeeFed.R.Civ.P. 44.1 (“In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”). Moreover, the government's expert offered only one statement concerning sovereign immunity in Ecuadorian law: “Regardless of what one argues about the role, if any[,] [s]overeign immunity plays in Ecuadorian law, I can say that there is nothing in the Constitution of Ecuador (1998 Constitution would be applicable given the date of the casualty in 2005) which would absolutely guarantee reciprocity as to the hypothetical action.” (Emphases omitted.) In other words, the government's expert declined to contest the proposition that sovereign immunity does not exist in Ecuador. Read narrowly, the expert demurs; read broadly, he implicitly concedes that Plaintiffs' experts are correct that sovereign immunity does not exist in Ecuadorian law. If, as the government asserts, sovereign immunity exists in Ecuadorian law, we would expect its expert simply to say so.²

Nor does the government identify any other Ecuadorian legal source in support of its position. The government cites cases in which Ecuador has waived foreign sovereign immunity as a defendant in a case in United States court. Jota v. Texaco Inc., 157 F.3d 153, 162–63 (2d Cir.1998); Aquamar S.A. v. Del Monte Fresh Produce N.A., 179 F.3d 1279, 1300 (11th Cir.1999). But foreign sovereign immunity concerns the right of a foreign nation (or agency) to sovereign immunity in courts of the United States. The doctrine of sovereign immunity at issue here is different. We must determine the extent to which a nation can use its sovereign immunity as a defense in its own courts. Nothing in the United States cases cited by the government concerns the question whether Ecuador applies the concept of sovereign immunity in its own court system. That Ecuador may choose to waive or retain sovereign immunity when it finds itself as a defendant in United States courts simply does not speak to whether that defense is available in courts of its own jurisdiction.

Turning to the second point—that reciprocity exists because there would be no legal impediment to filing suit if the nationalities were reversed—the government's response rests on a misunderstanding of the relevant inquiry. The government's expert repeatedly demurs, or implicitly concedes, the legal point; instead, he focuses only on whether, as a practical matter, litigation in Ecuadorian courts would succeed:

It is my opinion that a hypothetical action as described above in paragraph 2, could hardly (or never) be successful, and could hardly (or never) result in a money judgment against the Ecuadorian military or Ecuadorian government entities. In other words, as a practical matter, there is no reciprocity.

....

Whether reciprocity may exist to whatever degree as a legal matter based on Constitutional and legal rules, as a practical matter, I believe it will be very hard, not to say impossible, to get a judicial decision against the government of...