Tenth Circuit Holds that Discretionary Function Exemption Shields Coast Guard from SAA Liability

Per Harrell v. U.S., 443 F.3d 1231 (10th Cir. Apr 06, 2006):

In the Suits in Admiralty Act (SAA), the United States waives its sovereign immunity from suit for maritime torts committed by its agents. See 46 U.S.C.App. § 742; Tew v. United States, 86 F.3d 1003, 1005 (10th Cir.1996). The SAA contains no express exceptions to the waiver of sovereign immunity. In contrast, the Federal Tort Claims Act (FTCA), which waives sovereign immunity for tort claims against the United States, contains an express exception with respect to claims “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.” Tew, 86 F.3d at 1005. The Tenth Circuit has held that a similar discretionary function exception is to be implied into the SAA. See id.

The Supreme Court has set forth a two-part test to determine whether conduct is encompassed by the discretionary function exception and thereby immunized from SAA liability. See Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (FTCA context); Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir.2003) (applying Berkovitz test in SAA context). The court must first consider whether the challenged conduct was “discretionary,” meaning whether it was “a matter of judgment or choice for the acting employee.” See Lopez v. United States, 376 F.3d 1055, 1057 (10th Cir.2004) (citing Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). If the court finds that it was, the court must then consider whether it was the type of decision the discretionary function exception was designed to protect, namely one requiring the exercise of judgment based on considerations of public policy. See id. (citing Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954).

… With respect to the first prong of the Berkovitz test, plaintiffs do not point to any statute, regulation or policy mandating that the Coast Guard warn mariners about the location or condition of aids to navigation in any particular fashion. The challenged conduct, then, is discretionary under the first prong. The Coast Guard's decisions about the appropriate manner in which to warn the public about potential hazards relating to buoys are also discretionary under the second prong, as those decisions implicate the exercise of a policy judgment of an economic nature, including the feasibility and costs of erecting and maintaining physical markers in light of available resources and the relative risks to the public health and safety from alternative actions. Thus, it is clear that the Coast Guard's decision whether to place a warning sign or marker at the buoy's location was a discretionary decision that required judgment and one that was grounded in public policy considerations.