In the Matter of the Complaint Scott Moore, as Administrator of the Estate of Gregory Moore, owner of the vessel 'REEL INTIMIDATOR" for Exoneration from or Limitation of Liability
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MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 9/21/2020. (ybs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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In the Matter of the Complaint of
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Scott Moore, as Administrator of the Estate *
Of Gregory Moore, Owner of the Vessel
“REEL INTIMIDATOR” for Exoneration
From or Limitation of Liability
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Case No.: 1:17-cv-1310-PWG
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MEMORANDUM OPINION
Third Party Plaintiff Katelyn Burroughs, Individually and as Personal Representative of
the Estate of Roger Grissom, Sr., filed suit against the United States pursuant to the Suits in
Admiralty Act (SIAA) 46 U.S.C. §§ 30901–18. She alleges that, while conducting a rescue
mission to search for Roger Grissom and others who were aboard the vessel Reel Intimidator
before it capsized in a storm on November 19, 2016, the United States Coast Guard (USCG) acted
negligently and created a reliance interest on behalf of Grissom and the others aboard. Answer
and Compl., 8-9, ECF No. 12. That negligence, according to Burroughs, was the proximate cause
of loss and damage to the distressed mariners aboard the vessel whose position “worsened in
reliance on the undertaking [of the rescue mission] by the Coast Guard.” Id. at 9.
The Government has moved to dismiss for lack of subject matter jurisdiction, claiming that
the sovereign immunity discretionary function exception of the Federal Tort Claims Act (FTCA)
protects it from suit relating to the USCG’s actions on the night of the rescue. Def.’s Mot. Mem.
8-9, ECF No. 74. The discretionary function exception is set forth in the FTCA. 28 U.S.C. §
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1364(b), §§ 2671-80. In McMellon v. United States, the Fourth Circuit held the discretionary
function exception also applies to suits filed under the SIAA. 387 F.3d 329, 349 (4th Cir. 2004)
(en banc) (“[S]eparation-of-powers principles require us to read a discretionary function exception
into the SIAA . . . .”). For the reasons that follow, I agree with the United States, and dismiss this
complaint with prejudice.1
The relevant actors in this case are various USCG personnel involved in the November
19th rescue operation. According to the Government’s motion, those individuals include Petty
Officer Michael McCarthy, who took the distress call while stationed at the Coast Guard Sector
Maryland-National Capital Region command center, Def.’s Mot. Mem. 4; Petty Officer Ian
McGoohan, the assigned Operations Unit controller, also stationed at the command center, id. at
5; Petty Officer James Bonner, who commanded the first-dispatched USCG 45-foot rescue boat,
id. at 6; Petty Officer Michael Esce, who relieved Petty Officer McGoohan, id.; and Petty Officer
Richard Chandler, whose crew relieved Petty Officer Bonner and his crew during the search, id.
The Plaintiff, who carries the burden to establish jurisdiction, Wood v. United States, 845
F.3d 123, 127 (4th Cir. 2017), fails to establish that the USCG’s decisions at issue are not protected
by the discretionary function exception, and therefore sovereign immunity shields those decisions.2
The parties fully briefed the motion (ECF Nos. 74, 77, 78), and a hearing is not necessary. See
Loc. R. 105.6 (D. Md. 2018).
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Because I find in favor of the government on the basis of the discretionary function exception, I will not reach the
alternative arguments the Government raised as to the Good Samaritan Rule.
Plaintiff asserts that the Coast Guard acted negligently during the rescue operations. Pl.’s Resp. Mem. 4-5. The
Government correctly states in its reply that Negligence has no bearing on the applicability of the discretionary
function exception. Holbrook v. United States, 673 F.3d 341, 350 (4 th Cir. 2012).
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Standard of Review
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal of a
plaintiff’s complaint due to lack of subject matter jurisdiction, asserting, in effect, that the plaintiff
lacks any “right to be in the district court at all.” Holloway v. Pagan River Dockside Seafood, Inc.,
669 F.3d 448, 452 (4th Cir. 2012). “Jurisdiction of the lower federal courts is . . . limited to those
subjects encompassed within a statutory grant of jurisdiction.” Ins. Corp. of Ireland v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 701 (1982). Because subject matter jurisdiction involves
the court’s power to hear a case, it cannot be waived or forfeited, and courts have an independent
obligation to ensure that subject matter jurisdiction exists. Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006). The burden of establishing subject matter jurisdiction rests squarely with the plaintiff.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). But the district court should grant
a 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law.” Balfour Beatty Infrastructure, Inc. v. Mayor & City
Council of Balt., 855 F.3d 247, 251 (4th Cir. 2017) (quoting Evans, 166 F.3d at 647).
A defendant may challenge the district court’s subject matter jurisdiction in two ways. See
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). First, a defendant may raise a facial
challenge, alleging “that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Under such a
challenge, the court takes the complaint’s allegations as true. Kerns, 585 F.3d at 192.
Alternatively, a defendant may raise a factual challenge, asserting that the jurisdictional allegations
in the complaint are untrue. Id. In that case, the court may consider evidence outside of the
pleadings without converting the motion to one for summary judgment. Id.
The Government does not state in its motion whether it brings a facial or factual challenge.
However, I will construe the motion as a facial challenge, because the Government is essentially
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arguing that the discretionary function exception precludes jurisdiction even on the facts set forth
in Plaintiff’s complaint. Accordingly, I will take the facts alleged in the complaint as true and
deny the motion if the complaint alleges sufficient facts to invoke subject matter jurisdiction. Id.
Discussion
“The United States, as sovereign, is immune from suit save as it consents to be sued .”
United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Kerns, 585 F.3d at 193-94 (“Absent
a statutory waiver, sovereign immunity shields the United States from a civil tort suit.”). In the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., Congress “waived the sovereign
immunity of the United States for certain torts committed by federal employees” within the scope
of their employment. Kerns, 585 F.3d at 194 (quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 475 (1994)). “The FTCA, as a waiver of sovereign immunity, is strictly construed, and all
ambiguities are resolved in favor of the sovereign.” Robb v. United States, 80 F.3d 884, 887 (4th
Cir. 1996).3
However, the FTCA lists several exceptions under which the United States does not waive
its sovereign immunity and consent to be sued. 28 U.S.C. § 2680. One of these is the discretionary
function exception, which exempts from the waiver of sovereign immunity
[a]ny 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.
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As already noted, while the following discussion of the discretionary function exception relies on analysis from the
FCTA, it is clear that the same principles apply with equal force to a cause of action under the SIAA. McMellon v.
United States, 387 F.3d 329, 349 (4 th Cir. 2004) (en banc) (holding the SIAA implicitly contains a discretionary
function exception to its waiver of immunity).
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28 U.S.C. § 2680(a). With this exception, “Congress wished to prevent judicial ‘second-guessing’
of legislative and administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). If the discretionary function exception
applies, the United States has not waived sovereign immunity and the court lacks subject matter
jurisdiction. Williams v. United States, 50 F.3d 299, 304-05 (4th Cir. 1995).
Courts undertake a two-tier analysis in order to determine whether the discretionary
function exception applies. First, the Court must consider “whether the governmental action
complained of involves an element of judgment or choice.” Baum v. United States, 986 F.2d 716,
720 (4th Cir. 1993) (internal quotation marks omitted) (citing Berkovitz v. United States, 486 U.S.
531, 536 (1988); United States v. Gaubert, 499 U.S. 315, 322 (1991); Piechowicz v. United States,
885 F.2d 1207, 1211 (4th Cir. 1989)). As the Fourth Circuit has instructed,
[t]he inquiry boils down to whether the government conduct is the subject of any
mandatory federal statute, regulation, or policy prescribing a specific course of
action. If such a mandatory statute, regulation, or policy applies, then the conduct
involves no legitimate element of judgment or choice and the function in question
cannot be said to be discretionary. In that case the government actor “has no rightful
option but to adhere to the directive,” and if the plaintiff can show that the actor in
fact failed to so adhere to a mandatory standard, then the claim does not fall within
the discretionary function exception.
Baum, 986 F.2d at 720 (quoting Berkovitz, 486 U.S. at 530).
Second, if no such mandatory rule exists and the government must exercise its choice or
judgment, the Court “ask[s] whether the choice or judgment involved is one based on
considerations of public policy.” Id. (internal quotation marks omitted) (citing Berkovitz, 486
U.S. at 531; Gaubert, 499 U.S. at 323-24). “The focus of the inquiry is not on the agent’s
subjective intent in exercising the discretion conferred by statute or regulation, but on the nature
of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at
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324-25; see also Baum, 986 F.2d at 720-21 (4th Cir. 1993) (eschewing a “fact-based inquiry” in
favor of an examination of the objective and general nature of the type of decision in question).
Notably, “[t]here are obviously discretionary acts performed by a Government agent that are
within the scope of his employment but not within the discretionary function exception because
these acts cannot be said to be based on the purposes that the regulatory regime seeks to
accomplish.” Gaubert, 499 U.S. at 325 n.7; see also Totten v. United States, 806 F.2d 698, 700
(6th Cir. 1986) (citing Dalehite v. United States, 346 U.S. 15, 27-28 (1953)) (drawing a distinction
between torts committed in the course of routine activities, such as operation of a motor vehicle,
and “those associated with activities of a more obviously governmental nature”). The core inquiry
is whether the decision in question is one inherently expected to be grounded in policy
considerations. Baum, 986 F.2d 720-21.
The Government contends that the conduct at issue in this case is discretionary and rooted
in public policy considerations. Def.’s Mot. Mem. 2. More specifically, the Government argues
that the first prong of the Berkovitz-Gaubert analysis is met because the alleged conduct is not
governed by any mandatory federal directives, since the challenged conduct—a search and rescue
mission in an unpredictable and dangerous environment—is not governed by any policy or
directive that establishes mandatory (hence, non-discretionary) conduct.
In support, the
Government cites the federal statute that grants the USCG broad discretion during the types of
operations at issue here: “the Coast Guard may perform any and all acts necessary to rescue and
aid persons and protect and save property.” 14 U.S.C. § 521(a)(1). Thus, Congress leaves to
USCG personnel the exact means and methods of conducting search and rescue missions in which
they choose to engage.
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As to the second prong, the Government claims that the USCG’s conduct during search
and rescue operations falls under the discretionary function exception because “decisions of which
search and rescue assets to deploy and when” requires personnel to “balance many competing
policy considerations including the safety of Coast Guard personnel and others, preservation of
property, funding, resource limitations, and the needs of other concurrent [rescue] operations.”
Def.’s Mot. Mem. 14. The Government argues that USCG decisions on the night the Reel
Intimidator capsized were “not mandated by federal law or policy.” Id. at 14.
But Plaintiff maintains that the conduct in question created a reliance interest among the
Reel Intimidator’s crew that the USCG’s rescue efforts would be conducted with due care, as
measured by tort law. Pl.’s Resp. Mem. 19. Plaintiff argues this reliance negated any need by
those aboard the Reel Intimidator to seek other sources of help, such as calling 911 on their cell
phones. Consequently, Plaintiff says, the discretionary function exception does not apply, because
the Defendant’s policy discretion in choosing to engage in a rescue requires the USCG to act with
due care and it failed to do so when it did not inform the Reel Intimidator’s crew about the
operation’s status. Pl.’s Resp. Mem. 15.
“Before a court can apply the two-part test to determine whether the discretionary function
exception applies, the court must first identify the ‘conduct at issue.’” Krey v. Brennan, Civil
Action No. DKC 15-3800, 2017 WL 2797491, at *4 (D. Md. June 28, 2017) (quoting Bell v. United
States, 238 F.3d 419 (6th Cir. 2000)). Certainly, the Government is correct that whether to engage
in rescue operations, when to conduct them, and how to execute them is a matter of discretion, as
it pertains to “a question of how to allocate limited resources among competing needs.” Baum,
986 F.2d at 722. See also Smith v. United States, 251 F. Supp. 2d 1255, 1259-61 (D. Md. 2003)
(Coast Guard’s choice of when and how to repair a navigational aid was based on considerations
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of public policy, because it “[took] into account the question of how to allocate resources among
competing needs”); Claypool v. United States, 103 F. Supp. 2d 899, 908 (S.D.W.V. 2000)
(National Park Service’s decision not to maintain roadside terrain was policy-based, because the
decision was made considering allocation of NPS’s limited resources). Plaintiff’s claim centers
around the alleged failure to properly conduct such an operation once the Coast Guard exercised
its discretion to undertake it in the first place. Compl. 15; Pl.’s Resp. Mem. 15. Thus, the focus
here is the conduct of the USCG personnel and their decisions during the rescue operations.
Plaintiff’s arguments attack those decisions, such as not telling the crew to also call 911, while the
Government defends USCG decisions that night as the product of experience and discretion.
Turning to the first prong of the Berkovitz-Gaubert analysis, the Government asserts that
decisions during search and rescue operations are rooted in experience and sound judgment , not
explicit policy directives. Def.’s Mot. Mem. 11-12. Upon review of the relevant policies the
Government cited and provided, I agree. Each decision the Coast Guard personnel made in
responding to the distressed vessel, from deploying the rescue boat to calling in a Maryland State
Police helicopter, was undertaken in light of their judgment and experience. Def.’s Mot. Mem. 5,
12. The controlling statute’s wording, 14 U.S.C. § 521(a)(1), clearly contains indicia of discretion:
Congress allows that the Coast Guard “may” conduct these types of operations. Not only does §
521(a)(1), discussed above, vest Coast Guard personnel with broad discretion, but so too does
USCG internal guidance on search and rescue operations. The Government cites internal USCG
policy on conducting search and rescue operations, which unambiguously provides
Coast Guard personnel are expected to exercise broad discretion in performing the
functions discussed. The Coast Guard retains the discretion to deviate from or
change this guidance without notice. This document creates no duties, standard of
care, or obligations to the public and should not be relied upon as a representation
by the Coast Guard as to the matter of proper performance in any particular case.
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U.S. Coast Guard, Coast Guard Addendum to the United States National Search and Rescue
Supplement (SAR Addendum), COMDTINST M16130.2F, at 2 (Jan. 7, 2013) (hereinafter
“Addendum”). The Addendum further indicates USCG members are instructed to act with sound
judgment. Id. Importantly, for purposes of the analysis here, the safety of the operation guides
decisions such as those made on November 19th. According to the Addendum “[t]he choice of
search units, air or surface, depends greatly on safety of operations under the given conditions . . .
.” Id. at 40. Therefore, the treacherous conditions that caused the Reel Intimidator to capsize in
the first place also impacted USCG decisions about which resources to deploy and when and how
to deploy them.
These search and rescue guidelines are paramount when analyzing the first prong of the
Berkovitz-Gaubert test. The Plaintiffs point to no directives, such as when to call in non-USCG
resources or what USCG dispatchers should advise distressed mariners about response times, that
mandate any one method of conducting a search and rescue operation in stormy conditions. The
Berkovitz-Gaubert test requires the court to assess “whether the governmental action complained
of involves an element of judgment or choice.” Baum v. United States, 986 F.2d 716, 720 (4th Cir.
1993) (internal quotation marks omitted) (citing Berkovitz v. United States, 486 U.S. 531, 536
(1988); United States v. Gaubert, 499 U.S. 315, 322 (1991). On this first inquiry, there can be no
legitimate doubt that it does. USCG employees had discretion in determining whether and how to
search for the Reel Intimidator’s crew on November 19, 2016.
Moving to the second prong of the test, whether the act complained of is the type
susceptible to policy analysis, the same answer is required. It is. As an initial matter,
discretionary conduct is presumed to be based on public policy considerations. See Gaubert, 499
U.S. at 324 (“When established governmental policy, as expressed or implied by statute,
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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.”);
Williams v. United States, 242 F.3d 168, 175 (4th Cir. 2001).
Plaintiffs argue the discretionary function exception does not apply here because, during
depositions, USCG members stated that social, political, and economic factors did not play a role
in their decisions during the rescue mission. Maybe so, but that’s not the test; Gaubert instructs
that “[t]he focus of the inquiry is not on the agent’s subjective intent in exercising the discretion
conferred by statute or regulation, but on the nature of the actions taken and on whether they are
susceptible to policy analysis.” Gaubert, 499 U.S. at 325. Therefore, citing to deposition
testimony about subjective perceptions or beliefs of the Coast Guard rescue crew is unavailing.
As the Supreme Court noted in Gaubert, “[t]here are obviously discretionary acts
performed by a Government agent that are within the scope of his employment but not within the
discretionary function exception because these acts cannot be said to be based on the purposes that
the regulatory regime seeks to accomplish.” 499 U.S. at 325 n.7. For example, if a government
official drove an automobile on government business and “negligently collided with another car,
the [discretionary function] exception would not apply.” Id. The instant case is easily
distinguished. Conducting a search and rescue mission in response to a frantic call for help is a
core role of the USCG. The decisions here were not akin to negligently colliding with another car
while conducting government business; rather, USCG personnel braved dangerous conditions to
rescue imperiled fishermen. That their efforts did not result in a happy ending is tragic, of course,
but it is not something for which the law holds them liable.
Search and rescue operations fit the mold of the type of conduct that gave rise to the
discretionary function exception. See Varig Airlines, 467 U.S. at 813 (“[T]he basic inquiry
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concerning the application of the discretionary function exception is whether the challenged acts
of a Government employee . . . are of the nature and quality that Congress intended to shield from
tort liability.”). Varig offers a helpful focus for purposes of this case, noting that Congress seeks
“to protect certain governmental activities from exposure to suit by private individuals.” Id. at
808. Specifically, the Varig Court expressed concern about the adverse consequences of imposing
liability that would “handicap efficient government operations.” Id. (citing United States v.
Muniz, 374 U.S. 150, 163 (1963).
It’s easy to understand why USCG rescue operations like these should be protected from
suit: the Coast Guard must make decisions in rapidly-unfolding and dangerous situations. Secondguessing those decisions with the leisurely benefit of hindsight fails to account for the inherent
stresses, difficulties, and other factors that characterize the difficulty with which they must be
undertaken. It further fails to a take into consideration such discretionary factors as limited
resources or competing demands for the same resources. Ex. E to Def’s Mot. Mem., CDR Fleming
Decl. 3 ¶ 11. Decisions undertaken during a search are rescue are those that “we would expect
inherently to be grounded in considerations of policy,” Baum, 986 F.2d at 721, and are “susceptible
to policy analysis.” Gaubert, 499 U.S. at 324-25. Relitigating those decisions after the fact
promises to undermine subsequent attempts to execute rescues on the high seas. They embody the
exercise of discretion, and consequently divest this Court of jurisdiction to hear this case.
Conclusion
For the reasons stated, the motion to dismiss is granted with prejudice. A separate order
follows.
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DATED this 21st day of September, 2020.
BY THE COURT:
/S/
Paul W. Grimm
United States District Judge
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