Discretionary Function and Policy Analysis Shielding the U.S. Coast Guard from Liability

Powers v. United States, 2023 WL 1468478; 2023 U.S. Dist. LEXIS 17881 *(W.D. Wa. Feb. 2, 2023; Zilly, J.)

            Just off the northwest coast of Washington state off Whidby Island on May 2, 2019,  Michael Powers and Richard Seay, his cousin were navigating a 20-foot Duckworth Navigator when a rogue wave hit the vessel destroying its windshield and causing the vessel to sink rapidly.[1] Seay died shortly after being thrown from the vessel. Powers survived after 8 hours in the water and was rescued by another vessel.[2] He sued the United States alleging the U.S. Coast Guard was negligent because his rescue was delayed by the Coast Guard.[3] The U.S. brought a Rule 12(b)(1) Motion to Dismiss for lack of subject matter jurisdiction.[4]

            Judge Zilly noted that there is no legal duty imposed on a private party or the U.S. Coast Guard to rescue in a maritime distress.[5] But, a good Samaritan who takes on the obligation to rescue can be liable under two circumstances: “(i) negligent conduct that worsens the position of the person in distress, or (ii) reckless or wanton conduct in performing the rescue.”[6] In this case, the claimant asserted that the conduct of the Coast Guard “worsened the situation” in that having assumed the duty to search and rescue, the Coast Guard was negligent informing other parties in the area as well as the media that there was no vessel in distress which resulted in the termination of rescue efforts.[7]

            The court first addressed sovereign immunity of the U.S. While the court has jurisdiction pursuant to 28 U.S.C. § 1333, it does not waive the government’s sovereign immunity. Rather, the Suits in Admiralty Act,[8] does along with the Federal Tort Claims Act which contains a “discretionary function” exception unlike the SIAA.[9] The Circuit Courts which have considered the issue all have held that the SIAA also has such an exception.[10] The U.S. bears the burden to prove this exception applies.[11]

            Supreme Court precedent establishes a two-part inquiry into whether the exception applies.[12] The first question is whether the act in question is discretionary.[13] If so, then the next step is to determine “whether the governmental decision was ‘of the kind that the discretionary function exception was designed to shield.’”[14] Actions or omissions based on public policy considerations are protected by the discretionary function exception.[15]

            In applying these standard, Judge Villy concluded that the determination by the Coast Guard that no vessel was in distress passed the discretionary function exception.[16] The next step was to determine whether the decisions of the Coast Guard are susceptible to a policy analysis.[17] The Coast Guard in its Motion to Dismiss failed to link economic and other considerations in its determination of the issues in the case at bar.[18] None of the evidence presented in the Motion alludes to any policy considerations.[19] The negligence of the Coast Guard remains a fact issue though testimony of the Commander that the Search and Rescue Mission Coordinator failed to comply with the Coast Guard’s own standard of care undercuts any policy analysis and argument put forth by the Coast Guard.[20]

            Finally, Judge Zilly confronted the claimant’s motion to hold that the “discretionary function” defense is without merit; but, as there is no precedent to preclude the defense and as the U.S. could prove other policy reasons, he denied to do so.[21]

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[1] 2023 WL 1468478 at *1.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id. 

[7] Id. at *2.

[8] 46 U.S.C. § 30903(a).

[9] 28 U.S.C. § 2680(a): “(a) Any 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.”

[10] 2023 WL 1468478 at *2, citing Earles v. United States, 935 F.2d 1028 (9th Cir. 1991).

[11] Id.

[12] Id. citing United States v. Gaubert, 499 U.S. 315 (1991).

[13] Id.

[14] Id.

[15] Id. 

[16] Id. at *4.

[17] Id. at *5.

[18] Id. at *6.

[19] Id. at *7.

[20] Id. 

[21] Id. at *8-9.