Tobar v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OSWALDO ENRIQUE TOBAR; ROSA 
CARMELINA ZAMBRANO 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
VELEZ CEDENO; DANIEL DAVID
QUIMI CHALEN; PABLO EDUARDO No. 08-56756
LUCAS CONFORME; RAMON EDUARDO D.C. No.
PILLIGUA CONFORME; CIRO MARIANO  3:07-cv-00817-
LOPEZ MERO; PEDRO MANUEL WQH-WMC
LOPEZ MERO; JOSE EDUARDO LUCAS OPINION
MERO; LUIS ANTONIO PENAFIEL
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; CARLOS
ORLANDO VELEZ ZAMBRANO, and
JOSE LUIS ZAMBRANO, ZAMBRANO,
Plaintiffs-Appellants,


5273
5274 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 February 4, 2010
Resubmitted March 22, 2011
Pasadena, California

Filed April 21, 2011

Before: Betty B. Fletcher, Harry Pregerson, and
Susan P. Graber, Circuit Judges.

Opinion by Judge Graber
5276 TOBAR v. UNITED STATES

COUNSEL

Walter L. Boyaki, Miranda & Boyaki, El Paso, Texas, for the
plaintiffs-appellants.

R. Scott Blaze and R. Michael Underhill, United States
Department of Justice, San Francisco, California, for the
defendant-appellee.
 TOBAR v. UNITED STATES 5277
OPINION

GRABER, Circuit Judge:

Plaintiffs are Ecuadorian crew members of a fishing boat.
The United States Coast Guard saw their boat in international
waters near the Galapagos Islands and suspected it of involve-
ment with smuggling drugs. The Coast Guard stopped Plain-
tiffs’ boat and boarded it. Tests performed on the vessel
yielded suspicious but inconclusive results and, with the con-
sent of the Ecuadorian government, the Coast Guard towed
the boat to Ecuador. Further tests conducted by the Ecuador-
ian government uncovered no contraband, and no charges
were filed against Plaintiffs.

Plaintiffs then sued the United States for damages resulting
from these events. The district court held that the United
States had not waived its sovereign immunity over this action
and, accordingly, dismissed the action. Reviewing de novo,
Harger v. Dep’t of Labor, 569 F.3d 898, 903 (9th Cir. 2009),
we affirm in part, vacate in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

Because the district court dismissed this action on the
pleadings, we take as true the allegations of the complaint.
Cell Therapeutics Inc. v. Lash Grp. Inc., 586 F.3d 1204, 1206
n.2 (9th Cir. 2010). Plaintiffs allege that, “[o]n or about Octo-
ber 5, 2005 in international waters off the Galapagos Islands
in the Pacific Ocean the agents of the [United States] unlaw-
fully and negligently, stopped, searched, arrested, detained
and imprisoned the Plaintiffs, seized the boat, destroyed the
cargo and fish owned by [some] Plaintiffs . . . for allegedly
smuggling and possessing illegal drugs.” Plaintiffs seek dam-
ages of slightly more than $5 million for unlawful imprison-
ment, humiliation, pain and suffering, destruction of personal
property, loss of their catch, loss of the use of the vessel, and
public ridicule.
5278 TOBAR v. UNITED STATES
The United States filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction on the ground that the United States has not
waived sovereign immunity. The district court agreed and dis-
missed this action. Plaintiffs timely appeal.

DISCUSSION

The primary question before us is whether the United
States has waived sovereign immunity. “We will consider the
issue of sovereign immunity on the merits because it can be
raised at any time by the government, as it goes to a court’s
jurisdiction.” IRS v. Fed. Labor Relations Auth., 521 F.3d
1148, 1152 (9th Cir. 2008).1

[1] “It is elementary that the United States, as sovereign,
is immune from suit save as it consents to be sued, and the
terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit. A waiver of sovereign immu-
nity cannot be implied but must be unequivocally expressed.”
United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation,
alterations, and internal quotation marks omitted). The waiver
of sovereign immunity is a prerequisite to federal-court juris-
diction. United States v. Mitchell, 463 U.S. 206, 212 (1983).
“[L]imitations and conditions upon which the [United States]
Government consents to be sued must be strictly observed and
exceptions thereto are not to be implied.” Soriano v. United
States, 352 U.S. 270, 276 (1957). “Federal sovereign immu-
nity insulates the United States from suit ‘in the absence of an
express waiver of this immunity by Congress.’ ” Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009) (quoting
1
It is therefore irrelevant that, as Plaintiffs contend, the United States
failed to assert with specificity the affirmative defense of sovereign immu-
nity in its answer to the original complaint. Nor was it improper for the
district court to consider the affidavits submitted by both parties; indeed,
that is the correct procedure for jurisdictional challenges raised in a Rule
12(b)(1) motion. Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003).
 TOBAR v. UNITED STATES 5279
Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461
U.S. 273, 280 (1983)).

In their complaint, Plaintiffs offered a number of sources of
an alleged waiver of sovereign immunity by the United States.
Plaintiffs also filed a motion to amend their complaint to add
two additional sources. The district court denied the motion
on the ground that the proposed amendment could not cure
the sovereign-immunity defect. Like the district court, we
consider all sources. Those sources include: the Public Ves-
sels Act (“PVA”), 46 U.S.C. §§ 31101-31113; the Suits in
Admiralty Act (“SAA”), 46 U.S.C. §§ 30901-30918;2 the Fed-
eral Tort Claims Act (“FTCA”); the Alien Tort Statute, 28
U.S.C. § 1350; the Military Claims Act, 10 U.S.C.
§§ 2731-2739; a regulation, 49 C.F.R. § 1.46(b); the Conven-
tion on the Law of the Sea; the International Covenant on
Civil and Political Rights (“ICCPR”); a bilateral treaty
between Ecuador and the United States concerning the use of
an Air Force base at Manta, Ecuador; and a letter from the
United States embassy to the Ecuadorian government request-
ing permission to board Plaintiffs’ vessel.

A. Non-Congressional Sources

The regulation and the letter are not acts of Congress, so
they cannot effect a waiver of sovereign immunity. United
States v. Park Place Assocs., Ltd., 563 F.3d 907, 934 (9th Cir.
2009). Additionally, we note that the regulation contains no
relevant information and does not pertain to sovereign immu-
nity. Similarly, the letter does not mention sovereign immu-
nity and, as noted, even if it implies that sovereign immunity
would be waived, implied waivers are ineffective. Mitchell,
445 U.S. at 538.
2
Until recently, these two Acts were codified at 46 U.S.C. §§ 781 et seq.
(PVA) and 46 U.S.C. §§ 741 et seq. (SAA). We use the present-day num-
bering.
5280 TOBAR v. UNITED STATES
B. Military Claims Act, Alien Tort Statute, and Treaties

The Military Claims Act does not mention, and therefore
does not waive, sovereign immunity. See Murphy ex rel.
Estate of Payne v. United States, 340 F. Supp. 2d 160, 171 (D.
Conn. 2004) (“The [Military Claims Act] does not waive the
Government’s sovereign immunity, but instead merely autho-
rizes the Secretary to settle claims (including disallowing
claims) at his or her discretion and under such regulations as
the Secretary may prescribe.”), adopted, 427 F.3d 158, 159
(2d Cir. 2005) (per curiam) (“We affirm on the well-reasoned
opinion of the District Court.”).

“[T]he Alien Tort Statute has been interpreted as a jurisdic-
tion statute only—it has not been held to imply any waiver of
sovereign immunity.” Goldstar (Panama) S.A. v. United
States, 967 F.2d 965, 968 (4th Cir. 1992) (citing Sanchez-
Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985);
Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092
(D.C. Cir. 1980)). “Thus, any party asserting jurisdiction
under the Alien Tort Statute must establish, independent of
that statute, that the United States has consented to suit.” Id.

The United States has signed, but has not ratified, the Con-
vention on the Law of the Sea. In the absence of congressio-
nal action, the Convention does not waive sovereign
immunity.

The United States has ratified the ICCPR. But that treaty is
not self-executing and therefore “did not itself create obliga-
tions enforceable in the federal courts.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 735 (2004).

Finally, the bilateral treaty concerning the Air Force base
at Manta, Ecuador, concerns, naturally enough, the Air Force
base at Manta, Ecuador, which played no part in the Coast
Guard’s actions here. The treaty does not mention the Coast
Guard, payment for the types of damage alleged by Plaintiffs,
 TOBAR v. UNITED STATES 5281
judicial remedies, or sovereign immunity. That being so, the
treaty does not waive the United States’ sovereign immunity.

C. The Public Vessels Act, Suits in Admiralty Act, and
Federal Tort Claims Act

[2] Each of these three Acts provides an explicit waiver of
sovereign immunity. The PVA waives sovereign immunity
for suits for “damages caused by a public vessel of the United
States.” 46 U.S.C. § 31102(a)(1). But the PVA contains a rec-
iprocity requirement: A national of a foreign country may sue
under the PVA only if the government of that foreign country
would permit a United States national to bring the same suit
in its courts. Id. § 31111. The SAA waives sovereign immu-
nity, subject to some exceptions, in admiralty cases when a
civil action could otherwise be brought if the United States
were not a party. Id. § 30903(a); see Earles v. United States,
935 F.2d 1028, 1032 (9th Cir. 1991) (recognizing a “discre-
tionary function exception” to that waiver). Finally, the FTCA
waives sovereign immunity in tort actions brought against the
United States, subject to certain exceptions listed in 28 U.S.C.
§ 2680.

Because each of those three Acts provides a separate,
explicit waiver of sovereign immunity, one might expect that
any of the three waivers would suffice. For example, one
would think that a claim brought under the SAA could pro-
ceed if the waiver requirements for that Act were met. For
historical reasons, however, that is not how the Acts work
together.

In United States v. United Continental Tuna Corp., 425
U.S. 164, 170-81 (1976), the Supreme Court explained the
relevant history. The Court concluded that a plaintiff who
brings an admiralty claim that falls within the scope of the
PVA must meet the PVA’s reciprocity requirement, even
though the text of the SAA suggests that a claim brought
under the SAA need not meet that requirement. Id. at 181. In
5282 TOBAR v. UNITED STATES
Taghadomi v. United States, 401 F.3d 1080, 1089-90 (9th Cir.
2005), we held that the same reasoning applies to potential
claims under the FTCA. In short, if a claim falls within the
scope of the PVA, the plaintiff must meet the reciprocity
requirement of the PVA, regardless of the type of claim the
plaintiff asserts—PVA, SAA, or FTCA. We turn, then, to
whether Plaintiffs’ claims fall within the scope of the PVA.

D. Whether Plaintiffs’ Claims Fall Within the Scope of
the PVA

[3] A claim falls within the scope of the PVA if the claim
comes within federal admiralty jurisdiction and if the dam-
ages were caused by a public vessel. Taghadomi, 401 F.3d at
1083. To come within federal admiralty jurisdiction, “the tort
must occur on or over navigable waters” (“locality require-
ment”), and “the actions giving rise to the tort claim must bear
a significant relationship to traditional maritime activity”
(“nexus requirement”). Id. at 1084 (internal quotation marks
omitted). Plaintiffs’ claims are that Coast Guard personnel
committed a number of torts when the Coast Guard boarded
their vessel on the high seas, inspected it, and towed it to
mainland Ecuador.

1. Locality Requirement

[4] “[T]he situs of a tort for the purpose of determining
admiralty jurisdiction is the place where the injury occurs.”
Id. at 1084. As in Taghadomi, Plaintiffs here “do not claim
that the injuries occurred anywhere but at sea. Thus, the local-
ity requirement is satisfied.” Id. at 1086. Even if one con-
strued Plaintiffs’ allegations as encompassing some negligent
activity elsewhere, we have held that it is “clear that this rule
[that the place where the injury occurs controls] holds even
when some of the negligent activity occurs on land.” Id. at
1084.
 TOBAR v. UNITED STATES 5283
2. Nexus Requirement

[5] There are two prongs to the nexus requirement. First,
a court “must assess the general features of the type of inci-
dent involved to determine whether the incident has a poten-
tially disruptive impact on maritime commerce.” Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 534 (1995) (citation and internal quotation marks omit-
ted). “Second, a court must determine whether the general
character of the activity giving rise to the incident shows a
substantial relationship to traditional maritime activity.” Id.
(internal quotation marks omitted).

[6] The incident in dispute did not merely have the poten-
tial to disrupt maritime commerce; it definitely disrupted mar-
itime commerce. According to the operative complaint, the
Coast Guard ruined Plaintiffs’ commercial fishing trip and
towed them and their boat hundreds of miles. Thus the first
prong is easily met. See, e.g., Gruver v. Lesman Fisheries
Inc., 489 F.3d 978, 982-83 (9th Cir. 2007) (holding that an
assault on a seaman by his former maritime employer aboard
a vessel in navigable waters had the potential to disrupt mari-
time commerce because it rendered the seaman unable to
fish); Taghadomi, 401 F.3d at 1086 (holding that this test was
met where kayakers fell overboard and a rescue mission was
attempted, because the “efficacy of search-and-rescue opera-
tions has a direct effect on the health and lives of seamen”).

[7] The second prong, which we have interpreted broadly,
likewise is easily met. In Gruver, 489 F.3d at 984-86, for
instance, a seaman was assaulted by a former maritime
employer while the seaman slept in his ship, docked at a pier.
The origin of the dispute lay in allegedly unpaid wages by the
former employer. Id. We held that the lens through which to
examine the relevant activity was the underlying wage dis-
pute; because that dispute concerned maritime wages, the sec-
ond prong was met. Id.; see also Mission Bay Jet Sports, LLC
v. Colombo (In re Mission Bay Jet Sports, LLC), 570 F.3d
5284 TOBAR v. UNITED STATES
1124, 1129 (9th Cir. 2009) (holding that a jet-ski injury met
the second prong because the activity in question—“operating
a vessel in navigable waters”—“has a maritime connection”).
The activity here, whether characterized as a fishing expedi-
tion or as a drug search on the high seas, meets the second
prong, because “the general character of the activity giving
rise to the incident shows a substantial relationship to tradi-
tional maritime activity.” Jerome B. Grubart, Inc., 513 U.S.
at 534 (internal quotation marks omitted).

3. “Damages Caused by a Public Vessel”

[8] The PVA waives sovereign immunity for suits for
“damages caused by a public vessel of the United States.” 46
U.S.C. § 31102(a)(1). “A ‘public vessel’ is one owned or
operated by the United States and used in a public capacity.”
Taghadomi, 401 F.3d at 1083 n.3. It is undisputed that the
Coast Guard ship at issue here is a “public vessel.” But Plain-
tiffs argue that the PVA does not apply because the damages
caused by the actions of the Coast Guard crew, especially
those actions taken while aboard the Ecuadorian ship, are not
“damages caused by a public vessel.”

For decades, we—and the Supreme Court—have inter-
preted that phrase broadly. Indeed, 60 years ago we inter-
preted the phrase “damages caused by a public vessel” to
encompass all tort and contract claims “aris[ing] out of the
possession or operation of the ship.” Thomason v. United
States, 184 F.2d 105, 107 (9th Cir. 1950). “The phrase
includes damages arising from those acts for which a private
ship is held legally responsible as a juristic person under the
customary legal terminology of the admiralty law.” Id. at
107-08. We held, for instance, that “unpaid compensation for
seamen’s services” were “damages caused by a public ves-
sel.” Id. at 108.

Similarly, in American Stevedores, Inc. v. Porello, 330 U.S.
446, 448-54 (1947), the Supreme Court held that a longshore-
 TOBAR v. UNITED STATES 5285
man’s claim for personal injury resulting from the fall of a
beam, negligently secured by a federal employee, constituted
“damages caused by a public vessel.” See also id. at 453 (rec-
ognizing “the growing feeling of Congress that the United
States should put aside its sovereign armor in cases where
federal employees have tortiously caused personal injury or
property damage”). In Canadian Aviator, Ltd. v. United
States, 324 U.S. 215, 224-25 (1945), the Court rejected a
reading of the PVA that would have related only to collisions
and held that the PVA “extends to cases where the negligence
of the personnel of a public vessel in the operation of the ves-
sel causes damage to other ships, their cargoes, and personnel,
regardless of physical contact between the two ships.” More
recently, we held that a claim alleging a negligent search by
a Coast Guard ship fell within the scope of the PVA’s “dam-
ages caused by a public vessel” requirement. Taghadomi, 401
F.3d at 1088.

[9] Given our broad interpretation of the phrase,3 we con-
clude that Plaintiffs’ claims here assert “damages caused by
a public vessel.” Taking the allegations of the complaint as
true, the crew of the public vessel stopped Plaintiffs’ ship on
the high seas, boarded it, damaged the cargo and other prop-
erty, and towed the ship to Ecuador. Although the public ves-
sel itself played a direct role only in some of the actions
(stopping and towing Plaintiffs’ ship), the public vessel’s role
in all of the actions of the crew is unmistakable. Even the
actions of the crew members while aboard Plaintiffs’ private
ship “ar[ose] out of the possession or operation of the ship.”
3
We recognize that the Eleventh Circuit has disagreed with our broad
reading of the PVA. See Marine Coatings of Ala. v. United States, 71 F.3d
1558, 1563-64 (11th Cir. 1996) (stating that our interpretation “is by far
the broadest reading any court has given the Public Vessels Act”); see also
Uralde v. United States, 614 F.3d 1282, 1286-88 (11th Cir. 2010) (con-
cluding that the PVA does not apply where the crew of a public vessel
boards a plaintiff’s private vessel). As a three-judge panel, we are bound
by the broader interpretation dictated by our precedents. Miller v. Gam-
mie, 335 F.3d 889 (9th Cir. 2003) (en banc).
5286 TOBAR v. UNITED STATES
Thomason, 184 F.2d at 107. The PVA “extends to cases
where the negligence of the personnel of a public vessel in the
operation of the vessel causes damage to other ships, their
cargoes, and personnel, regardless of physical contact
between the two ships.” Canadian Aviator, 324 U.S. at
224-25. The relevant operation of the vessel here is not sim-
ply the movements of the public vessel itself; the relevant
operation is the Coast Guard’s search and seizure of Plain-
tiffs’ vessel on the high seas. Thomason, 184 F.2d at 107-08.
In conclusion, we agree with the district court that Plaintiffs’
claims fall within the PVA’s requirement of “damages caused
by a public vessel.”

E. The PVA’s Reciprocity Requirement

[10] The PVA’s waiver of sovereign immunity is condi-
tioned 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 simi-
lar circumstances, allows nationals of the United
States to sue in its courts.

46 U.S.C. § 31111. The district court held that the documents
submitted by Plaintiffs—an affidavit by an Ecuadorian lawyer
and a translated copy of the Ecuadorian constitution—were
insufficient to establish that reciprocity exists. We agree.

[11] The documents say nothing about sovereign immunity
or about suits for damages caused by the Ecuadorian govern-
ment. Non-Ecuadorians may have equal access to Ecuadorian
courts and a guarantee of due process, but those issues do not
speak to whether Ecuador would allow a United States citizen
to sue the Ecuadorian government “in similar circumstances.”
Id. The documents are simply inapposite. Indeed, the affidavit
from the Ecuadorian lawyer does not state that any party can
 TOBAR v. UNITED STATES 5287
sue the Ecuadorian government. 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.

[12] The failure of Plaintiffs’ documents to demonstrate
reciprocity does not necessarily end the inquiry. Under Fed-
eral Rule of Civil Procedure 44.1, “[i]n 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. The court’s
determination must be treated as a ruling on a question of
law.” See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216 (9th
Cir. 2002) (discussing the determination of foreign law under
Rule 44.1); Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d
1036, 1037-39 (9th Cir. 1999) (same). In Universe Sales, 182
F.3d at 1038, we elaborated that, “pursuant to Rule 44.1,
courts may ascertain foreign law through numerous means,”
including through the court’s “own research.”

[13] Here, the district court held that, because Plaintiffs’
documents did not establish reciprocity, Plaintiffs failed to
meet their burden of demonstrating reciprocity. We are uncer-
tain whether a plaintiff bears the burden of establishing the
content of foreign law for purposes of the PVA’s reciprocity
requirement. Compare Fed. R. Civ. P. 44.1 (instructing that
the district court’s determination of foreign law is treated as
a ruling on a question of law) and Nicholas E. Vernicos Ship-
ping Co. v. United States, 349 F.2d 465, 467 (2d Cir. 1965)
(conducting an extensive inquiry into the content of Greek
law for purposes of determining reciprocity under 46 U.S.C.
§ 31111), with Lauro v. United States, 162 F.2d 32, 34-35 (2d
Cir. 1947) (rejecting, before the promulgation of Rule 44.1, a
claim under the PVA brought by an Italian plaintiff because
“[s]he offered no proof of Italian law in the District Court”).
But even assuming that Plaintiffs bear the burden here, the
district court apparently did not recognize that, in its discre-
5288 TOBAR v. UNITED STATES
tion, it could inquire further into the content of Ecuadorian
law. We therefore vacate and remand. Cf. United States v.
Davis, 428 F.3d 802, 803 (9th Cir. 2005) (“Because the dis-
trict court did not believe it had [certain] discretion, we vacate
and remand for reconsideration . . . .”).

Whether reciprocity exists under Ecuadorian law remains
undetermined. Notably, the attorney for the United States
asserted at oral argument that he did not know whether such
reciprocity exists. In these circumstances, we find it appropri-
ate to give the parties and the court an additional opportunity
to determine this threshold question. On remand, the court
may instruct the parties to provide additional evidence,
through testimony or other means; the court may conduct its
own research; and the court may undertake any other inquiry
consistent with Rule 44.1 to determine whether reciprocity
exists under Ecuadorian law.4

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

4
We make clear, however, that determining this question of foreign law
will not necessarily require further discovery by Plaintiffs. Plaintiffs seek
additional discovery concerning, for example, the actions of the crew.
Such information is irrelevant as to the content of Ecuadorian law. The
district court did not abuse its discretion in denying additional discovery.
We do not, however, preclude such further discovery as the district court
finds appropriate.