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In re Glacier Bay United Cook Inlet Drift Assoc.

filed: November 30, 1995.

IN RE: THE GLACIER BAY UNITED COOK INLET DRIFT ASSOC., AN ALASKA COOPERATIVE CORP., ON BEHALF OF A CLASS COMPRISING ITS MEMBERS AND ITS MEMBERS' DECKHANDS, PLAINTIFFS,
v.
TRINIDAD CORPORATION; WEST OF ENGLAND SHIP OWNERS; MARK HAWKER; KEE LEASING CO.; MATHIASEN'S TANKER INDUSTRIES, INC.; GLACIER BAY TRANSPORTATION CORPORATION, DEFENDANTS-APPELLANTS, V. UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Alaska. D.C. No. CV-88-00115-HRH. H. Russell Holland, District Judge, Presiding.

Before: Cecil F. Poole, Robert Boochever and Charles Wiggins, Circuit Judges. Opinion by Judge Poole.

Author: Poole

POOLE, Circuit Judge:

Various parties with interests in the oil tanker Glacier Bay (collectively "Trinidad") appeal the district court's dismissal of their suit against the United States under the Suits in Admiralty Act. Trinidad's suit alleges that the government's negligence in preparing nautical charts was partly responsible for the Glacier Bay running aground on a rock in Cook Inlet, Alaska. The district court concluded that the alleged acts of negligence are shielded by the discretionary function exception to the government's waiver of sovereign immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

I

On July 2, 1987, the tanker Glacier Bay ran aground on a large submerged rock (now known as the "Glacier Bay Rock") while attempting to anchor in Cook Inlet, Alaska. The grounding resulted in a major oil spill. Local fisherfolk sued Trinidad for damage to their livelihood, the United States sued Trinidad for reimbursement of cleanup costs, and Trinidad sued the United States under the Suits in Admiralty Act, 46 U.S.C. § 741-52, for negligence in preparing charts the ship's captain had used. These charts did not note the existence of the Glacier Bay Rock, although they did reference more general warnings about submerged objects in the area. This case is now before us for the second time. See In re Glacier Bay, 944 F.2d 577 (9th Cir. 1991).

At issue in this appeal are the methods and procedures the government uses to prepare, as a public service, nautical charts of United States waters. See 33 U.S.C. §§ 883a(1), 883b(4). These charts are based on hydrographic surveys consisting of soundings taken along a grid to map the waterways' depths. Trinidad's suit alleges that in conducting surveys of Cook Inlet in 1964 and 1975, hydrographers for the National Oceanic and Atmospheric Administration ("NOAA") were negligent. Specifically, the hydrographers allegedly failed to follow mandatory instructions regarding 1) how widely they should space their soundings of the bottom, and 2) under what circumstances they should investigate bottom anomalies that might indicate features like the submerged Glacier Bay Rock. Moreover, NOAA reviewers allegedly erred in approving the final charts based on those surveys.

Trinidad sought a declaratory judgment that the actions of government agents in preparing charts of Cook Inlet were not protected by the discretionary function exception, 28 U.S.C. § 2680(a), to the government's waiver of sovereign immunity. The district court concluded that the exception applied, and that it therefore lacked subject matter jurisdiction because immunity barred Trinidad's suit. Accordingly, it granted the government's motion to dismiss. Trinidad has timely appealed. We review de novo the district court's determination of subject-matter jurisdiction under the discretionary function exception. Weissich v. United States, 4 F.3d 810, 812 (9th Cir. 1993).

II

The discretionary function exception excludes from the Federal Tort Claims Act's broad waiver of sovereign immunity liability based on

an act or omission of an employee of the Government . . . 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 be abused.

28 U.S.C. § 2680(a). This limitation to the waiver of immunity applies equally to the Suits in Admiralty Act. Earles v. United States, 935 F.2d 1028, 1032 (9th Cir. 1991). Where the exception applies, no federal subject matter jurisdiction exists. Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994).

It is by now firmly established that the determination whether the exception applies requires a two-step analysis. First, does the challenged action involve an element of choice or judgment? If not, when a "'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,'" the exception will not apply. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1025 (9th Cir. 1989) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988)). Second, is any judgment at issue of the sort Congress intended to shield? If the judgment involves considerations of social, economic or political policy, the exception applies. Sutton v. Earles, 26 F.3d 903, 907 (9th Cir. 1994); Summers v. United States, 905 F.2d 1212, 1214 (9th Cir. 1990). This is so because it is precisely those sorts of decisions that Congress sought to shield from judicial second-guessing. Kennewick, 880 F.2d at 1022-23; United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984). When the record does not show that a decision is based on such policy considerations, the exception does not apply. Summers, 905 F.2d at 1215.

Trinidad's suit alleges negligence on the part of NOAA hydrographers and reviewers. Rather than simply applying the two-step analysis to each of these employees' actions, the district court rested its decision primarily on the fact that the reviewers had discretion whether or not to approve the final Cook Inlet charts:

Even if the Court were to conclude that contain mandatory provisions that remove the discretion of the crews who conduct the surveys, that Conclusion would not dispose of these motions because the government has produced undisputed evidence that the persons who have the ultimate responsibility for approving the charts as being reasonably accurate have unfettered discretion in reaching that decision.

District Court 12/14/93 Order at 10.

This method of applying the traditional two-step analysis conflicts with our settled precedents. As we have previously explained, the proper level of inquiry must be act by act. E.g., Sutton, 26 F.3d at 907 ("'We must examine separately [each claimed negligent act].'" (quoting Kennewick, 880 F.2d at 1025)). Under Berkovitz and Kennewick, we must determine whether each person taking an allegedly negligent action had discretion. Kennewick, 880 F.2d at 1025 ("We must first consider whether the action is a matter of choice for the acting employee." (emphasis added)). The proper question to ask is not whether the Government as a whole had discretion at any point, but whether its allegedly negligent agents did in each instance. Each separate action must be examined to determine whether the specific actor had discretion of a type Congress intended to shield.

Trinidad alleges that NOAA hydrographers were negligent, and that NOAA reviewers were negligent. We must therefore consider whether each had discretion to act as they did. Even if NOAA's reviewers had discretion to approve the final charts, such discretion would not shield allegedly negligent non-discretionary acts by the hydrographers. We reject the district court's Conclusion that the government cannot be liable for the final product of numerous specific actions, even if some of the actions were nondiscretionary and negligently executed, so long as others of those actions involved discretion.

It remains possible that because NOAA supervisors ultimately approved the surveys in question, Trinidad may not be able to show any alleged hydrographer errors actually caused them injury. That issue, however, is one of proximate cause. Issues of negligence are irrelevant to the discretionary function inquiry, and we need not consider them at this juncture. Routh v. United States, 941 F.2d 853, 855 (9th Cir. 1991).

The government argues in the alternative that NOAA's approval of the two surveys as "adequate" amounted to a conclusive determination that its own internal policies were not violated. However, in approving the survey, NOAA's reviewers were required to determine only whether the survey as a whole fell within the range of acceptability or whether certain portions would have to be redone. See Hydrographic Manual ("HM") 6-96; HM 6-105(3) ("Any significant deficiencies shall be described." (emphasis added)). It does not follow from that determination that the reviewers also interpreted the various applicable internal guidelines as giving discretion to the on-site hydrographers to do as they did. The reviewers could simply have concluded that any violations of survey policy were ...


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