Oswaldo Tobar v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OSWALDO ENRIQUE TOBAR; ROSA No. 12-56298
CARMELINA ZAMBR LUCAS; JUNIOR
IVAN PICO ALAVA; SEGUNDO D.C. No.
MATIAS ZAMBRANO ALONZO; 3:07-CV-00817-
FRANCISCO GABRIEL YOLE WQH-WMC
ARTEAGO; FAUSTO LUPERCIO ARIAS
CASTANEDA; FRABRICIO BAYRON
CEDENO; JOFFRE JOHNNY CEDENO OPINION
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,
2 TOBAR V. UNITED STATES

v.

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Argued and Submitted
August 23, 2013—Pasadena, California

Filed September 25, 2013

Before: Harry Pregerson, Susan P. Graber, and
Morgan Christen, Circuit Judges.

Opinion by Judge Graber

SUMMARY*

Sovereign Immunity

The panel affirmed in part and vacated in part the district
court’s dismissal based on the federal government’s
sovereign immunity, or alternatively under the discretionary
function exception to the waiver of sovereign immunity, of an

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 TOBAR V. UNITED STATES 3

action brought by the crew of an Ecuadorian fishing boat that
was searched and towed by the United States Coast Guard.

The panel held that on the evidence submitted in this case,
reciprocity with Ecuador exists because, in similar
circumstances, nationals of the United States are able to sue
Ecuador in Ecuadorian courts. The panel concluded that the
government’s waiver of sovereign immunity was not barred
by the reciprocity requirement. The panel also held that the
discretionary function exception to the waiver of sovereign
immunity, contained in the Federal Tort Claims Act, also
applied to the Public Vessels Act. The panel further held that
the government’s waiver of sovereign immunity was not
barred by the discretionary function exception to the extent
that plaintiffs’ claims resulted from the failure of the
government to meet its non-discretionary duty to pay
damages, contained in Ecuador’s authorization to board
plaintiffs’ vessel and incorporated by reference in the Coast
Guard Maritime Law Enforcement Manual. Finally, the
panel held that to the extent that plaintiffs’ claims fell outside
the non-discretionary duty to pay damages, their claims were
barred by the discretionary function exception.

COUNSEL

Walter L. Boyaki (argued), Boyaki Law Firm, El Paso, Texas,
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,
California, for Defendant-Appellee.
4 TOBAR V. UNITED STATES

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.
 TOBAR V. UNITED STATES 5

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

1
Plaintiffs also argue that the district court abused its discretion by
denying further discovery. Because Plaintiffs have not identified relevant
information that discovery could have uncovered, we hold that the district
court did not abuse its discretion. See Quinn v. Anvil Corp., 620 F.3d
1005, 1015 (9th Cir. 2010) (“We review district court rulings on discovery
matters for abuse of discretion.”).
6 TOBAR V. UNITED STATES

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
(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
 TOBAR V. UNITED STATES 7

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. See Fed. 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
8 TOBAR V. UNITED STATES

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

2
Plaintiffs’ experts correctly identify sovereign immunity as a creature
of common law, rather than civil law. See, e.g., 33 Charles Alan Wright
& Charles H. Koch, Jr., Federal Practice and Procedure § 8403, at 418
(3d ed. 2006) (tracing the roots of the doctrine to Blackstone: “Blackstone
took to be a fundamental principle that ‘the King can do no wrong.’”); id.
at 419 (“This body of law crossed the Atlantic and a similar principle
evolved in U.S. law.”); accord Erwin Chemerinsky, Federal Jurisdiction
§ 9.2.1, at 629 (5th ed. 2007) (“The principle of sovereign immunity is
derived from English law, which assumed that ‘the King can do no
wrong.’”). Although we have found no source describing the difference
between common-law nations and civil-law nations with respect to
sovereign immunity in a nation’s own courts, we note that, traditionally,
civil-law nations took a more lenient view of access to the courts in the
realm of foreign sovereign immunity. See Letter from Jack B. Tate,
Acting Legal Advisor, Department of State, to Acting Attorney General
Philip B. Perlman, May 19, 1952, reprinted in Alfred Dunhill of London,
Inc. v. Republic of Cuba, 425 U.S. 682, 711–15 (1976); Williams v.
Shipping Corp. of India, 653 F.2d 875, 878 (4th Cir. 1981) (describing the
doctrine).
 TOBAR V. UNITED STATES 9

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
10 TOBAR V. UNITED STATES

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 Ecuador or the
Navy. One must assume that if intended suits
against the government and its military are
actually permitted, it would be practically, not
to say unthinkably, unlikely to get a favorable
decision to hypothetical plaintiffs, especially
now when the executive branch is
reorganizing the entire judiciary system. In
other words, no reciprocity exists as a
practical matter.

....

Even if reciprocity could be said to exist
in Ecuador as a matter of Constitutional and
legal rules, as a practical matter, its existence
would be unimaginably difficult to achieve.

(Paragraph numbering omitted; emphases altered.) The
expert never explains what those practical considerations are.3

3
For example: Are the filing deadlines strict? Is discovery against
Ecuador limited? Are suits against the government disfavored? Are the
filing fees expensive? Would the government seek to resolve the dispute
 TOBAR V. UNITED STATES 11

In any event, the unspecified practical limitations on the
potential success of a suit do not speak to the relevant legal
inquiry here: whether a citizen of the United States would be
allowed to sue. See 46 U.S.C. § 31111 (querying whether the
foreign government, “in similar circumstances, allows
nationals of the United States to sue in its courts”).4

The government’s final arguments fare no better. The
government argues that it is not clear from the affidavits by
Plaintiffs’ experts whether they considered the precise
context—in particular, the fact that the challenged actions
were taken by the United States military. Although the
experts did not specifically mention the military, they were
aware of the facts of this case and assessed reciprocity in that
light. For example, one expert reached his conclusions only
after stating: “I have reviewed the facts and information on
file with the case of Tobar, et al v. The United States.”
Moreover, the experts’ conclusions did not depend on the
precise nature of the underlying facts, because their reasoning
was that sovereign immunity simply does not exist in
Ecuadorian law.

The government also argues, as stated by its expert, that
there is no “absolute guarantee” of reciprocity in the
Ecuadorian constitution. But that is not the proper inquiry.
There need not be a constitutional guarantee to meet the

through political channels? Is there a presumption in favor of the
government?
4
We need not and do not decide whether a country with a demonstrably
corrupt court system, where legal permission to sue is but an empty
gesture, would qualify under the statute. There is neither evidence nor
argument in this case that such would be the “practical” reason for the
projected lack of success in the hypothetical Ecuadorian litigation.
12 TOBAR V. UNITED STATES

statute’s reciprocity requirement. Section 31111 asks only
whether the foreign government, “in similar circumstances,
allows nationals of the United States to sue in its courts.” On
the evidence submitted by the parties, we hold that reciprocity
exists under 46 U.S.C. § 31111.

B. Discretionary Function Exception

1. Applicability to the PVA

The FTCA waives sovereign immunity for certain
categories of claims, subject to specified exceptions,
including the “discretionary function exception”:

Any claim based upon an act or omission
of an employee of the Government, exercising
due care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or 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). The exception “marks the boundary
between Congress’ willingness to impose tort liability upon
the United States and its desire to protect certain
governmental activities from exposure to suit by private
individuals.” United States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).

Neither the SAA nor the PVA expressly contains the
“discretionary function exception.” Nevertheless, in Earles
 TOBAR V. UNITED STATES 13

v. United States, 935 F.2d 1028, 1032 (9th Cir. 1991), we
joined eight sister circuits in holding that the exception
applies to claims brought under the SAA. “Were we to find
the discretionary function exception not to be applicable to
the SAA, we would subject all administrative and legislative
decisions concerning the public interest in maritime matters
to independent judicial review in the not unlikely event that
the implementation of those policy judgments were to cause
private injuries.” Id. (internal quotation marks and alterations
omitted). The same reasoning applies to claims under the
PVA: If Congress’ intent to exempt discretionary functions
from independent judicial review is given effect, the
discretionary function exception must apply to the PVA as
well. Cf. Koohi v. United States, 976 F.2d 1328, 1336 (9th
Cir. 1992) (incorporating the FTCA’s “combatant activities”
exception into the PVA because, “if Congress’s manifest
intent to maintain sovereign immunity from liability arising
from the combatant activities of maritime vessels is to be
given meaningful effect, the combatant activities exception
must be incorporated into the PVA”).

Not surprisingly, then, all three sister circuits to have
considered the issue have held that the discretionary function
exception applies to claims under the PVA. 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); U.S. Fire Ins. Co. v. United States,
806 F.2d 1529, 1534–35 (11th Cir. 1986), abrogated in part
by United States v. Gaubert, 499 U.S. 315 (1991), as
recognized in Cranford v. United States, 466 F.3d 955, 959
(11th Cir. 2006); see also McMellon v. United States,
387 F.3d 329, 334–49 (4th Cir. 2004) (en banc) (conducting
an extensive analysis of the FTCA, SAA, and PVA to
conclude, in reasoning that applies equally to the PVA, that
14 TOBAR V. UNITED STATES

the SAA incorporates the discretionary function exception).
We join our sister circuits in holding that the discretionary
function exception also applies to the PVA’s waiver of
sovereign immunity.

2. Application of the Discretionary Function
Exception

The Supreme Court decided a series of cases concerning
the scope of the discretionary function exception, culminating
in its 1991 decision in Gaubert, 499 U.S. 315. See also
Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531
(1988); Varig Airlines, 467 U.S. 797; Indian Towing Co. v.
United States, 350 U.S. 61 (1955); Dalehite v. United States,
346 U.S. 15 (1953). After Gaubert, the courts have followed
a two-step analysis when considering whether the
discretionary function exception applies. See Terbush v.
United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (citing
Berkovitz, 486 U.S. at 536–37). The first step asks “whether
the challenged actions involve an ‘element of judgment or
choice.’” Id. (quoting Gaubert, 499 U.S. at 322). The
exception will not apply if “a federal statute, regulation, or
policy specifically prescribes a course of action for an
employee to follow.” Berkovitz, 486 U.S. at 536. Otherwise,
the analysis proceeds to the second step.

The second step asks “‘whether that judgment is of the
kind that the discretionary function exception was designed
to shield,’ namely, ‘only governmental actions and decisions
based on considerations of public policy.’” Terbush,
516 F.3d at 1129 (quoting Berkovitz, 486 U.S. at 536–37); see
also Varig Airlines, 467 U.S. at 814 (describing the inquiry
as whether the decision is “grounded in social, economic, and
political policy”). This inquiry requires a determination of
 TOBAR V. UNITED STATES 15

where the activity falls on the spectrum from non-policy
activities (such as driving a car) to policy-related ones (such
as drafting regulations). Whisnant v. United States, 400 F.3d
1177, 1181 (9th Cir. 2005).

a. First Step: “Element of Judgment or Choice”

“[T]he discretionary element is not met where a federal
statute, regulation, or policy specifically prescribes a course
of action for an employee to follow.” Myers ex rel. L.M. v.
United States, 652 F.3d 1021, 1028 (9th Cir. 2011) (internal
quotation marks omitted). “An agency does not retain
discretion whether to act where a statute or policy directs
mandatory and specific action and the agency has no lawful
option but to adhere to the directive.” Bailey ex rel. Estate of
Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010)
(emphasis added). The statute authorizing the actions taken
here speaks in pertinent part only in general terms and does
not direct mandatory and specific action:

The Coast Guard may make inquiries,
examinations, inspections, searches, seizures,
and arrests upon the high seas and waters over
which the United States has jurisdiction, for
the prevention, detection, and suppression of
violations of laws of the United States. For
such purposes, commissioned, warrant, and
petty officers may at any time go on board of
any vessel subject to the jurisdiction, or to the
operation of any law, of the United States,
address inquiries to those on board, examine
16 TOBAR V. UNITED STATES

the ship’s documents and papers, and
examine, inspect, and search the vessel and
use all necessary force to compel compliance.

14 U.S.C. § 89(a) (emphases added).

Indeed, Plaintiffs do not assert that § 89(a) prescribes a
specific course of action. Instead, they assert that the
government violated its own regulations and policies. In
particular,5 the U.S. Coast Guard Maritime Law Enforcement
Manual provides: “When acting pursuant to flag State
authorization, the boarding State may not exceed the terms of
the authorization. Such authorization may be contained in a
pre-existing written agreement or may be provided on an ad
hoc basis.” That policy does not afford any discretion: “the
boarding State may not exceed the terms of the
authorization.” (Emphasis added.) Here, the specific
authorization to board and inspect Plaintiffs’ boat6 contained
the following condition: “If there are no drugs on board, and
there are damages or losses sustained by the vessel, in
accordance to the U.S. laws and in a manner complying with
international laws, the owner of the vessel will be
compensated, as long as neither the vessel nor the crew have
been involved in illicit actions.” That directive, too, is
specific and mandatory: The owner “will be compensated,”
so long as the specified conditions are met. (Emphasis

5
We have considered Plaintiffs’ arguments carefully, but we have
uncovered no other regulation or policy that directs a mandatory and
specific course of action that is relevant here.
6
The United States’ request for Ecuador’s authorization to search this
specific Ecuadorian boat is contained in a letter that lists the condition
quoted in the text above. The record contains no suggestion that
Ecuador’s grant of authorization differed from the request.
 TOBAR V. UNITED STATES 17

added.) By carrying out its activities with respect to
Plaintiffs’ boat, the government accepted that mandatory
obligation.

Accordingly, to the extent that Plaintiffs demonstrate that
all of the specified conditions have been met, their claims are
not barred by the discretionary function exception. In their
complaint, Plaintiffs allege that there were no drugs on board,
that there were damages and losses sustained by the vessel,
that some Plaintiffs owned the boat, and that neither the
vessel nor the crew had been involved in illicit actions.
Because the district court dismissed this action on the
pleadings, we take as true the allegations in the complaint.
Cell Therapeutics Inc. v. Lash Grp. Inc., 586 F.3d 1204, 1206
n.2 (9th Cir. 2010). In this procedural posture, then, those
elements have been satisfied.7

It is less clear that Plaintiffs have exhausted their
administrative remedies, as required by the policy: “in
accordance to the U.S. laws and in a manner complying with
international laws, the owner of the vessel will be
compensated.” The complaint alleges that Plaintiffs “filed a
claim for injuries with the United States Navy and Coast
Guard” and that the government took no action on that claim
within six months, “tantamount to denial of the claim.” At
oral argument, the government’s lawyer suggested that the
administrative denial of Plaintiffs’ claim resulted from
Plaintiffs’ failure to provide documentation of damages. In

7
Because we conclude that the manual, in conjunction with the letter,
prescribed a non-discretionary course of action, we need not consider
whether the government voluntarily assumed a non-discretionary
contractual duty. See Bell v. United States, 127 F.3d 1226, 1229 (10th Cir.
1997).
18 TOBAR V. UNITED STATES

order to prove that the government violated its non-
discretionary duty to pay damages to the owner, Plaintiffs
must demonstrate that it met the administrative requirements
imposed by federal law. But these issues cannot be decided
on the pleadings.

Two additional, related restrictions warrant mention.
First, the non-discretionary duty requires the government to
pay damages to “the owner” of the boat. (Emphasis added.)
Because the government’s non-discretionary duty applies
only to the owner of the boat, the only Plaintiffs who can
benefit from the policy are the owners. Second, the non-
discretionary duty pertains to “damages or losses sustained by
the vessel.” Plaintiffs have alleged a wide range of injuries,
including physical damages to the boat itself and reputational
damages to crew members resulting from “public ridicule.”
Because the parties have not briefed the issue, we express no
view on the extent of “damages or losses” encompassed by
the non-discretionary duty to pay.

b. Second Step: “Based on Considerations of
Public Policy”

Plaintiffs also argue that, even if the government did not
violate a non-discretionary duty, the discretionary function
exception nevertheless is inapplicable, because any
discretionary judgments were not “based on considerations of
public policy.” This step considers the discretionary
judgment at issue and asks “whether that judgment is of the
kind that the discretionary function exception was designed
to shield, namely, only governmental actions and decisions
based on considerations of public policy.” Terbush, 516 F.3d
at 1129 (internal quotation marks omitted). As discussed
above, 14 U.S.C. § 89(a) confers discretion on the Coast
 TOBAR V. UNITED STATES 19

Guard crew in carrying out the boarding and inspection of
vessels on the high seas. “[I]f a regulation allows the
employee discretion, the very existence of the regulation
creates a strong presumption that a discretionary act
authorized by the regulation involves consideration of the
same policies which led to the promulgation of the
regulations.” Gaubert, 499 U.S. at 324 (emphasis added); see
also id. (“When established governmental policy, as
expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion,
it must be presumed that the agent’s acts are grounded in
policy when exercising that discretion.”).

Two sister circuits have held, in actions similar to this
one, that the second step was met. In B & F Trawlers,
841 F.2d at 627, the Coast Guard discovered a ship carrying
marijuana and began towing the ship. During the towing, a
fire broke out on the ship, and the Coast Guard eventually
sank the ship. Id. The Fifth Circuit held that the Coast
Guard’s actions concerned public policy. Id. at 631. The
court reasoned that “the discretionary activity is the
enforcement of narcotics laws on the high seas” and that “the
discretionary function exception in principle shields from tort
liability the Coast Guard’s apprehension and transportation of
drug-running vessels.” Id. at 631–32.

Similarly, in Mid-South Holding Co. v. United States,
225 F.3d 1201, 1203 (11th Cir. 2000), the Customs Service
searched a ship that later sank, allegedly because of the
Custom Service’s negligent actions while conducting the
search. The Eleventh Circuit held that the second step was
met because “the decision to board and search a vessel is the
product of the balancing of various compelling policy
considerations.” Id. at 1205. After block-quoting the
20 TOBAR V. UNITED STATES

reasoning of the Fifth Circuit in B & F Trawlers, the court
held:

The considerations cited by the Fifth Circuit
apply with equal force here. The Customs
Service, faced with escalating enforcement
duties and limited resources, must decide how
best to effectuate our nation’s anti-narcotics
laws. In so doing, the Customs Service
necessarily exercises discretion in choosing
whether to board and search a vessel,
weighing the costs of implementing such
activities against the likelihood of an
enforcement success. The discretionary
function exception was designed to prevent
judicial “second guessing” of exactly this type
of policy-based decision.

Id. at 1206 (citations omitted).

In our view, the reasoning of the Fifth and Eleventh
Circuits applies equally here.8 The challenged actions—the

8
Plaintiffs’ attempts to distinguish those cases fall flat. Plaintiffs point
out that the Fifth Circuit in B & F Trawlers remanded the case to
determine whether the Coast Guard had violated any regulations. But a
violation of a regulation concerns the first step, discussed above, not the
second step. Turning to Mid-South Holding, Plaintiffs insist that the
Eleventh Circuit’s discussion concerned a different exception, the
“Customs exception,” and not the discretionary function exception.
Plaintiffs are mistaken. The district court had analyzed the law
enforcement exception without mention of a “customs exception,” but the
Eleventh Circuit expressly declined to reach that issue because it resolved
the case on the ground of the discretionary function exception. Mid-South
Holding, 225 F.3d at 1207–08. The entire discussion concerns the
discretionary function exception. Id. at 1205–07. In sum, Plaintiffs offer
 TOBAR V. UNITED STATES 21

boarding, searching, and towing of the ship—all fall under
policy considerations of enforcement of domestic drug laws,
“minimization of intrusion on the privacy and property
interests of searched parties,” general considerations of
foreign relations, as well as “weighing the costs of [boarding
and searching the ship] against the likelihood of an
enforcement success.” Id. at 1206–07. “Although the
attendant details could be characterized as mundane or as
disengaged from any substantial policy consideration, they
are nonetheless critical to the performance of the
discretionary scheme and, accordingly, are entitled to the
protection of the discretionary function exception.” Id. at
1207.

We therefore hold that, to the extent that Plaintiffs’ claims
fall outside the non-discretionary duty to pay damages, their
claims are barred by the discretionary function exception.

CONCLUSION

On the evidence submitted in this case, reciprocity with
Ecuador exists because, in similar circumstances, nationals of
the United States are able to sue Ecuador in Ecuadorian
courts. Accordingly, the government’s waiver of sovereign
immunity is not barred by the reciprocity requirement. The
government’s waiver of sovereign immunity also is not
barred by the discretionary function exception to the extent
that Plaintiffs’ claims result from the failure of the
government to meet its non-discretionary duty to pay
damages, contained in Ecuador’s authorization to board
Plaintiffs’ vessel and incorporated by reference in the Coast

no factual or legal distinction between this case and B & F Trawlers and
Mid-South Holding, and we cannot discern a meaningful distinction.
22 TOBAR V. UNITED STATES

Guard Maritime Law Enforcement Manual. Otherwise, the
discretionary function exception bars Plaintiffs’ claims.

AFFIRMED in part, VACATED in part, and
REMANDED for further proceedings. The parties shall
bear their own costs on appeal.