Tobar v. United States

Reciprocity with another nation exists when, under similar circumstances, United States nationals are able to sue the other nation in that nation’s courts, and the discretionary function exception in the Federal Tort Claims Act applies to the Public Vessels Act.

The United States Coast Guard, with Ecuadorian authorities’ authorization, boarded an Ecuadorian fishing boat in order to search for drugs. The Ecuadorian boat crew (“Plaintiffs”) sustained damages and losses during the search, and they then brought claims for violations of the Federal Tort Claims Act (“FTCA”), the Suits in Admiralty Act (“SAA”), and the Public Vessels Act (“PVA”). The district court dismissed the case, holding that the government had not waived its sovereign immunity. The Ninth Circuit remanded to determine whether there was reciprocity with Ecuador, and the district court came to the same conclusion a second time. On appeal, the panel first held that because Ecuador is a civil-law nation and United States citizens would be able to sue Ecuador in Ecuador’s courts under similar circumstances, reciprocity with Ecuador existed. Therefore, the government’s waiver of sovereign immunity was not barred by this reciprocity requirement. However, the panel noted that the discretionary function exception under the FTCA waives sovereign immunity. Although this waiver is not clearly stated under the SAA or the PVA, the panel ruled that the discretionary function exception also waives sovereign immunity under these two Acts. Finally, in order for the discretionary function exception to apply, a two-step process must be applied: 1) a statute, regulation, or policy must prescribe a course of action for the employee; and 2) the judgment made by the employee must be based in public policy. Although, the first step was not satisfied in this case, the Plaintiff’s claims were barred because the panel deemed the second step satisfied. AFFIRMED in part, VACATED in part, and REMANDED.