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No. 06-1282

 

In the Supreme Court of the United States

EDDIE TYRONE CRANFORD, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
ROBERT S. GREENSPAN
DANA J. MARTIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the discretionary function exception to the Suits in Admiralty Act's waiver of sovereign immunity bars petitioners' tort action against the United States.

In the Supreme Court of the United States

No. 06-1282

EDDIE TYRONE CRANFORD, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-12) is reported at 466 F.3d 955. The opinion of the district court (Pet. App. 13-27) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on October 5, 2006. A petition for rehearing was denied on December 21, 2006 (Pet. App. 28-29). The petition for a writ of certiorari was filed on March 20, 2007. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Suits in Admiralty Act (SAA), 46 U.S.C. 30901 et seq., waives the federal government's sovereign immunity from maritime tort actions that do not involve public vessels. See 46 U.S.C. 30903. The Public Vessels Act (PVA), 46 U.S.C. 31101 et seq., similarly waives the federal government's sovereign immunity from admi ralty claims involving public vessels. See 46 U.S.C. 31102.1 Both waivers of sovereign immunity, however, are subject to an exception for acts involving discretion ary functions, along the lines of the discretionary func tion exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. 2680(a). See, e.g., Mid-South Holding Co. v. United States, 225 F.3d 1201, 1204 (11th Cir. 2000); United States Fire Ins. Co. v. United States, 806 F.2d 1529, 1534-1535 (11th Cir. 1986).2 The discretionary function exception to the FTCA provides, in relevant part, that the government retains immunity from suits "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, whether or not the discretion involved be abused." 28 U.S.C. 2680(a).

A two-part inquiry guides courts' application of the discretionary function exception. See United States v. Gaubert, 499 U.S. 315, 322-323 (1991). A court must first examine the alleged tortious act to determine whether it was "discretionary in nature"-that is, whether it involved "an element of judgment or choice." Id. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). That element of judgment or choice is not involved where an employee disobeys a "federal stat ute, regulation, or policy" that "'specifically prescribes a course of action for [the] employee to follow,' because 'the employee has no rightful option but to adhere to the directive.'" Ibid. (quoting Berkovitz, 486 U.S. at 536); see id. at 324 ("If the employee violates [a] mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be con trary to policy.").

If it is determined that "the challenged conduct in volves an element of judgment," Berkovitz, 486 U.S. at 536, the discretionary function exception applies so long as the judgment was "of the kind that the discretionary function exception was designed to shield," Gaubert, 499 U.S. at 322-323 (quoting Berkovitz, 486 U.S. at 536). And the exception is designed to shield judgments in volving policy; stated differently, it is intended to "pre vent judicial 'second-guessing' of legislative and admin istrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 323 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). "When established governmental pol icy, as expressed or implied by statute, regulation, or agency guidelines," allows a government employee "to exercise discretion, it must be presumed" that the em ployee's actions are "grounded in policy when exercising that discretion." Id. at 324.

In this second stage of the analysis, "[t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regu lation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, 499 U.S. at 325 (emphasis added). Further, the discretionary function exception protects discretionary decisions of government employees whether at the "pol icy or planning level" or the "operational" level. Ibid.

2. On August 9, 2003, a motor boat carrying Eddie Cranford, Ronald Melech, and Howard Melech struck a submerged vessel in Mobile Bay, near Fort Morgan beach in Alabama. Pet. App. 2, 16-17. Eddie Cranford and Howard Melech were injured in the allision with the submerged wreck (Fort Morgan wreck), and Ronald Melech died. Id. at 2, 17.

The Fort Morgan wreck is charted as a dangerous wreck on National Oceanic and Atmospheric Adminis tration charts. Gov't C.A. Br. 4-5; 04-0561-CB-M Docket entry No. 23, Attchs. 7-9 (S.D. Ala. June 7, 2005). The Fort Morgan wreck was first marked by the Coast Guard in 1992 with a temporary lighted buoy. Pet. App. 3. In 1996, the Coast Guard replaced the temporary buoy with a "telephone-pole-type piling" placed approxi mately 164 feet north-northwest of the portion of the wreck closest to the surface. Id. at 3, 17. The piling was marked with two unlighted orange and white signs that bore the words "Danger Wreck." Id. at 3, 18.

On August 5, 2003, four days before the accident in question, the Coast Guard again modified the marker to improve the identification of the Fort Morgan wreck. It replaced the unlighted signs on the piling with a flashing red light and a six-foot-wide red triangle marked with the letters "WR2." Pet. App. 3, 17-18. One of the rea sons for the change in the markings was to provide a "'lateral' aid" that would inform the mariner on which side the hazard lay. Gov't C.A. Br. 6. The red triangle indicated that the mariner should leave the mark to his right (starboard) upon returning from the Gulf of Mex ico, following the "red right returning" rule. Ibid.; see 33 C.F.R. 62.25(b)(2), 62.21(d). The Coast Guard consid ered moving the piling, but declined to do so. It feared that moving the piling closer would encourage passing vessels, including the ferry from Dauphin Island, to run too close to the wreck. Gov't C.A. Br. 6; 04-0561-CB-M Docket entry No. 23, Attch. 6, at 3-4 (S.D. Ala. June 7, 2005).

3. Petitioners filed suit against the government un der the SAA and the PVA, alleging that the Coast Guard acted negligently in marking the Fort Morgan wreck and in failing to remove the wreck. Pet. App. 3. The district court dismissed the claims on the ground that the conduct challenged by petitioners involves discre tionary governmental functions over which the United States has not waived its sovereign immunity. Id. at 18- 27.

4. The court of appeals affirmed. Pet. App. 1-12. Following the analysis in Gaubert, supra, the court first concluded that the Coast Guard's decisions concerning how to mark the wreck "involved elements of judgment or choice" and therefore satisfied the first part of the discretionary function inquiry. Id. at 8. The court noted that the Coast Guard's statutory authority, regulations, and internal guidance all conferred broad discretion to mark wrecks as it saw fit. Ibid. (citing 14 U.S.C. 86; 33 C.F.R. 64.33(a); U.S. Coast Guard, Aids to Navigation Manual-Administration (1981) (ATON Manual)).

The court next held that the Coast Guard's decisions concerning whether or how to mark a submerged wreck satisfied the second part of the discretionary function analysis, because they were "susceptible to policy analy sis" and "grounded in the policy of the regulatory re gime." Pet. App. 9 (quoting Gaubert, 499 U.S. at 325). The court stated that "decisions in marking a wreck in volve social, political, and economic policy consider ations, such as taking into account the knowledge and customs of international mariners, balancing the needs of pleasure and commercial watercraft, and evaluating agency resource constraints, which include but are not limited to financial concerns." Ibid. The court rejected petitioners' argument that marking a wreck involved "merely the application of professional standards," ibid., noting that the decision was unlike "certain decisions resting on mathematical calculations, for example, [that] involve no choice or judgment in carrying out the calcu lations." Ibid. (quoting Gaubert, 499 U.S. at 331.3

ARGUMENT

The judgment of the court of appeals is correct and does not conflict with any decision of this Court or other courts of appeals. The court of appeals correctly applied established law articulated by this Court; its fact-bound conclusion does not warrant further review.

1. The court of appeals correctly concluded that peti tioners' claim against the Coast Guard for "negligently failing to adequately mark, warn of and/or guard against a known underwater hazard and an obstruction to navi gation," 04-0561-CB-M Docket entry No. 1, at 1-2 (S.D. Ala. Aug. 25, 2004), falls within the scope of the discre tionary function exception. 28 U.S.C. 2680(a).

a. Petitioners do not appear to challenge the court of appeals' conclusion that no "federal statute, regulation, or policy specifically prescribes a course of action" for the Coast Guard to follow with respect to marking wrecks. Berkovitz v. United States, 486 U.S. 531, 536 (1988). The Coast Guard's actions in that regard are "discretionary act[s] * * * that involve[] choice or judgment." United States v. Gaubert, 499 U.S. 315, 325 (1991).

Congress expressly granted the Coast Guard (through the Secretary of Homeland Security) broad discretion to determine when and how to mark sub merged vessels and other obstructions. The relevant statute provides: "The Secretary may mark for the pro tection of navigation any sunken vessel or other obstruc tion existing on the navigable waters or waters above the continental shelf of the United States in such man ner and for so long as, in his judgment, the needs of maritime navigation require." 14 U.S.C. 86 (emphasis added). See 14 U.S.C. 81 (stating that Coast Guard "may establish, maintain, and operate * * * aids to maritime navigation required to serve the needs of the armed forces or of the commerce of the United States") (emphasis added). Similarly, under its own regulations, the Coast Guard "may mark for the protection of mari time navigation any structure, sunken vessel or other obstruction that is not suitably marked by the owner." 33 C.F.R. 64.33(a) (emphasis added).4

b. Petitioners' challenge to the court of appeals' ap plication of the second part of the discretionary function analysis-whether the determinations at issue are "sus ceptible to policy analysis," or "grounded in the policy of the regulatory regime," Gaubert, 499 U.S. at 325-is without foundation.

"When established governmental policy, as express ed or implied by statute, regulation, or agency guide lines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324. In this case, the governing statutes and reg ulations expressly set forth the policies that the Coast Guard considers when deciding whether or how to mark a wreck or otherwise establish an aid to maritime navi gation. See Sloan v. United States Dep't Hous. & Urban Dev., 236 F.3d 756, 761 (D.C. Cir. 2001) (noting that "it is hardly necessary to rely on * * * a presumption" that choice is policy-based when the relevant "regula tions place public policy at the forefront of the deci sion").5 The Coast Guard may mark wrecks "in such manner and for so long as, in [its] judgment, the needs of maritime navigation require." 14 U.S.C. 86 (empha sis added). Aids to maritime navigation generally should be maintained in view of "the needs of the armed forces or of the commerce of the United States." 14 U.S.C. 81(1). And "[t]he aids to navigation system is not intended to identify every * * * obstruction to naviga tion * * * , but rather provides for reasonable marking of marine features as resources permit." 33 C.F.R. 62.1(c).

The Coast Guard's decision to mark a vessel in a par ticular manner takes account of "the degree of danger an object poses, the vessel traffic type and density, the location of the object in relation to the navigable chan nel, the history of vessel accidents, and the feasibility and economics, including costs, of erecting and maintain ing physical markers in light of the available resources." Theriot v. United States, 245 F.3d 388, 399-400 (5th Cir. 1998). It is plainly "grounded in public policy consider ations." Id. at 400; see Harrell v. United States, 443 F.3d 1231, 1236 (10th Cir. 2006) (holding that "the Coast Guard's decisions concerning whether and when to ser vice [a] buoy * * * were policy-based").

Petitioners argue (Pet. 6-7) that the decisionmakers here did not, in fact, consider matters of policy in mark ing the wreck. That argument bears little weight be cause "[t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy anal ysis." Gaubert, 499 U.S. at 325. To the extent, however, that "[e]vidence of the actual decision may be helpful in understanding whether the 'nature' of the decision im plicated policy judgments," Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995), that evidence supports the Coast Guard.

The record makes clear that Coast Guard officers weighed policy considerations in determining to modify the wreck marker in 2003, and in deciding what form that modification should take. The beacon marking the Fort Morgan wreck was changed on August 5, 2003, "in order to better mark the wreck following a report of a vessel striking the wreck in 2002." 04-0561-CB-M Docket entry No. 23, Attch. 6, at 3 (S.D. Ala. June 7, 2005). The commanding officer determined that be cause the Fort Morgan wreck was not near a commer cially navigable channel, "it wasn't that much of a hazard to navigation." Id. No. 23, Attch. 15, at 26. He recom mended in favor of changing the signage on the wreck marker to add a flashing light and provide a lateral aid, in accordance with Coast Guard policies. Id. No. 23, Attch. 15, at 70, 78; see 33 C.F.R. 62.25. He did not, however, recommend adding a second marker to the Fort Morgan wreck, because he did not "want to estab lish a preceden[t] where the Coast Guard was * * * going to place an inordinate amount of aids to navigation on wrecks * * * whose hazard was questionable." 04- 0561-CB-M Docket entry No. 23, Attch. 15, at 71 (June 7, 2005); see United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820 (1984) (discretionary function exception applies to decisions that "require the agency to establish priorities for the accomplishment of its policy objectives by bal ancing the objectives sought to be obtained against such practical considerations as staffing and funding"). The Coast Guard decided not to move the marker out of a concern that if placed any closer to the wreck, the marker risked drawing the Fort Morgan ferry danger ously close to the wreck. 04-0561-CB-M Docket entry No. 23, Attch. 6, at 3-4 (S.D. Ala. June 7, 2005); id. No. 23, Attch. 13, at 24, 41-43. Such judgments, based upon balancing concerns for the safety of the local passenger ferry with the needs of smaller vessels traversing the area, clearly are policy-based.

2. As the above discussion indicates, the question whether the discretionary function exception applies to a particular case is highly fact-specific and depends on the particulars of the statutory and regulatory scheme and the decision at issue. None of this Court's decisions or the decisions of other courts of appeals that petition ers cite creates a conflict with the Eleventh Circuit's fact-specific judgment in this case.

Contrary to petitioners' argument (Pet. 13 n.2, 24- 25), there is no general limitation upon the discretionary function exception for matters of safety. Several of the cases that petitioners cite acknowledge this explicitly. E.g., Whisnant v. United States, 400 F.3d, 1177, 1182 n.3 (9th Cir. 2005) (no liability when, e.g., "government offi cials must consider competing fire-fighter safety and public safety considerations in deciding how to fight a forest fire, * * * [or] balance prison safety and inmate privacy considerations in deciding how to search a pris oner's cell in response to a reported threat of violence"); Shansky v. United States, 164 F.3d 688, 693 (1st Cir. 1999) ("[T]here is no principled basis for superimposing a generalized 'safety exception' upon the discretionary function defense."); Ayala v. United States, 980 F.2d 1342, 1350 n.4 (10th Cir. 1992) (noting that safety stan dards "are themselves policy judgments concerning trade-offs between safety, effectiveness, and economy"). That is so because "safety" is often one competing policy consideration that an agency must weigh alongside oth ers or is a more complicated risk-benefit calculation that involves the competing interests of multiple parties.

In those cases in which a court has found the discre tionary function exception inapplicable to a safety-re lated decision, the court also has found that there was effectively no countervailing policy interest that could justify a failure properly or adequately to take the safety measure. See Whisnant, 400 F.3d at 1184 (find ing that decision not to remove mold from Navy commis sary did not involve "allocation of limited resources among competing safety-promoting tasks") (emphasis omitted); Cope, 45 F.3d at 451-452 (holding aesthetics not to be countervailing policy consideration when "Park Service has chosen to manage the road in a manner more amenable to commuting through nature than com muning with it"); Myers v. United States, 17 F.3d 890, 897-898 (6th Cir. 1994) (finding no balancing of policy choices implicated by claim that MSHA inspectors "should have found, but failed to find, the existence of certain safety violations") (emphasis omitted); Andru lonis v. United States, 952 F.2d 652, 655 (2d Cir. 1991) (finding "neither a regulatory framework nor a defined policy that could serve as the basis for infusing all deci sions of CDC employees with policy implications"); Cestonaro v. United States, 211 F.3d 749, 755-756 (3d Cir. 2000) (concluding that government could articulate no policy rationale for adding some safety measures but not others).6 In this case, by contrast, the competing policies at issue are indicated on the face of the relevant statutes and regulations. See pp. 10-11, supra.

It is certainly relevant whether the government deci sion reflects the application of "technical safety assess ments" or "objective professional standards." Pet. 8; see, e.g., Berkovitz, 486 U.S. at 544-545; Ayala, 980 F.2d at 1349 (finding mine safety inspector's "technical assis tance" concerning "where to connect * * * lights" on automatic mining machine "was governed solely by tech nical considerations"). Petitioners' assertion (Pet. 8-9) that the presence or absence of such considerations con trols the analysis, however, is incorrect. In petitioners' view, decisions about maritime safety warnings would never be discretionary because they would always turn on the mere application of technical judgment. But in other failure-to-warn cases, the courts of appeals have not adopted that categorical approach, and have instead employed a case-by-case approach under which the re sults vary, even within the same circuit, depending on the particular circumstances of each case. Compare, e.g., Cope, 45 F.3d at 451-452 (finding that where 23 traf fic warning signs were already posted, failure to warn of slippery road conditions was not policy-based), with Loughlin v. United States, 393 F.3d 155, 165-166 (D.C. Cir. 2004) (finding that failure to warn about buried mu nitions and chemicals required balancing, inter alia, safety and national security concerns). See generally Soldano v. United States, 453 F.3d 1140, 1146-1147 (9th Cir. 2006) (describing varied holdings in Ninth Circuit failure-to-warn cases). Like those courts, the court of appeals in this case eschewed a categorical approach and made a fact-specific determination about the nature of the policy decision whether and how to mark a maritime obstruction. In so doing, the court did not create any conflict among the circuits, and its fact-bound conclusion does not warrant further review.7

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
ROBERT S. GREENSPAN
DANA J. MARTIN
Attorneys

JULY 2007

1 On October 6, 2006, the SAA and PVA were recodified with minor modifications not relevant to this case. See Act of Oct. 6, 2006, Pub. L. No. 109-304, § 6, 120 Stat. 1509.

2 In addition to the court below, ten other courts of appeals also have held that cases brought under the SAA are subject to an implied discretionary function exception. See Canadian Transp. Co. v. United States, 663 F.2d 1081, 1085-1086 (D.C. Cir. 1980); Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976), cert. denied, 430 U.S. 954 (1977); In re Joint E.&S. Dists. Asbestos Litig., 891 F.2d 31, 35 (2d Cir. 1989); Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 891 (3d Cir. 1990), cert. denied, 500 U.S. 941 (1991); McMellon v. United States, 387 F.3d 329, 349 (4th Cir. 2004), cert. denied, 544 U.S. 974 (2005); Wiggins v. United States, 799 F.2d 962, 966 (5th Cir. 1986); Baldassaro v. United States, 64 F.3d 206, 208 (5th Cir. 1995), cert. denied, 517 U.S. 1207 (1996); Graves v. United States, 872 F.2d 133, 137 (6th Cir. 1989) (citing Chotin Transp., Inc. v. United States, 819 F.2d 1342, 1347 (6th Cir.) (en banc), cert. denied, 484 U.S. 953 (1987)); Bearce v. United States, 614 F.2d 556, 559-560 (7th Cir.), cert. denied, 449 U.S. 837 (1980); Earles v. United States, 935 F.2d 1028, 1031-1032 (9th Cir. 1991); Tew v. United States, 86 F.3d 1003, 1005 (10th Cir. 1996). Two other courts of appeals have held that the discretionary function exception applies to the PVA. See Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir. 2003); B&F Trawlers, Inc. v. United States, 841 F.2d 626, 630 (5th Cir. 1988).

3 The court of appeals further held that the government's failure to remove the wreck likewise was protected by the discretionary function exception. It concluded that a provision of the Rivers and Harbors Appropriation Act of 1899 invoked by plaintiffs, 33 U.S.C. 409, did not require removal by the government of the wreck in question. Pet. App. 11-12. In the absence of a statute requiring the wreck's removal, the court found that the determination whether or not to remove it was discretionary and implicated public policy concerns. Id. at 12. Peti tioners do not appear to seek review of that aspect of the court of appeals' decision.

4 The ATON Manual sets forth more particular guidance for marking wrecks. See No. 04-0561-CB-M Docket entry No. 30, Exh. 18 (S.D. Ala. July 12, 2005). As the court of appeals emphasized, however, the Manual expressly provides that "the Coast Guard retains the discretion to deviate or authorize deviation from" the Manual's requirements. Pet. App. 8 (quoting ATON Manual 1-1). In any event, as the district court recognized, id. at 23, the Coast Guard complied with the relevant specifications. Thus, even if they could be described as mandatory directives, the provisions of the Manual do not support a claim against the United States. See Gaubert, 499 U.S. at 324 ("[I]f a regulation mandates particular conduct, and the employee obeys the direction, the Government will be protected.").

5 Petitioners' argument (Pet. 15) that the court of appeals "has made that presumption irrebuttable" is therefore beside the point because the presumption need not be invoked in this case.

6 In Hurd v. United States, 34 Fed. Appx. 77, 81-85 (4th Cir. 2002), the court of appeals declined to address the applicability of the discre tionary function exception even though the district court did so. Hurd therefore does not create or deepen a circuit split. See Pet. 22.

7 Petitioners also argue (Pet. 14-15) that the decision in this case conflicts with Indian Towing Co. v. United States, 350 U.S. 61 (1955). Indian Towing did not, however, address the scope of the discretionary function exception. Id. at 64; see Gaubert, 499 U.S. at 326. In any event, the alleged negligence at issue in that case-failure to ensure that a lighthouse was operating properly-differs significantly from the policy-laden judgments concerning maritime markers in this case.