Cranford v. United States, No. 06-10685, 2006 WL 2827680 (11th Cir. Oct. 5, 2006)
Jim Farrell, 3L, University of Mississippi School of Law
Introduction
When Ronald Melech, Howard Melech, and Eddie Cranford went boating on August 9, 2003, they could not have foreseen the hidden danger awaiting them in Mobile Bay. Seventy-three years earlier, the federal Works Progress Administration “deliberately sank” a U.S. Army Mine Planter “to serve as a breakwater” and created what came to be known as the Fort Morgan Wreck.1 The U.S. Coast Guard first charted and marked the wreck in 1992. Over the years, the Coast Guard modified the original marker from a “temporary lighted buoy” to a piling with two warning signs placed “164 feet north-northwest of the part of the wreck closest to the surface.”2 Only four days before the Cranford-Melech outing, the Coast Guard, in response to numerous reports of collisions with the wreck in recent years, had again changed the marker, “replac[ing] the signs with a flashing light and a six-foot-wide red triangle with the letters ‘WR2.’”3 Like its predecessors, the new marker failed to provide sufficient warning of the danger lurking just beneath the water’s seemingly innocuous surface.
As Eddie Cranford and the Melech brothers traveled east across Mobile Bay that Saturday, they could not see the submerged vessel even though parts of the Fort Morgan Wreck rested only six to eighteen inches below the surface. When their seventeen-foot motorboat struck the wreck at thirty miles per hour, Ronald and Eddie were thrown from the boat. Although Howard was eventually able to locate and pull Eddie back into the boat, officials did not find his brother’s body until the following day. Eddie Cranford and Howard Melech sued the government for their personal injuries, and Diane Melech sued on behalf of her deceased husband, Ronald. After consolidating the lawsuits, the district court promptly dismissed the claims for lack of subject matter jurisdiction, holding that the Coast Guard had not waived its sovereign immunity.
Sovereign Immunity
Despite the tragic details of their case, Cranford and the Melechs faced the unenviable task of suing the U.S. to recover for their losses. In the opening pages of its opinion the Eleventh Circuit hinted at the futility of the plaintiffs’ claims, reminding them that “[t]he United States is immune from suit unless it consents to be sued.”4 The plaintiffs brought their claims under the Suits in Admiralty Act (SAA) and the Public Vessels Act (PVA) which both “provide[ ] a waiver of sovereign immunity . . . for admiralty claims against the United States.”5 Despite this statutory vulnerability in the otherwise impenetrable shield of the federal government, the Eleventh Circuit warned future plaintiffs against becoming overly optimistic about their chances of prevailing on claims brought against the U.S. because “the waivers [in both the SAA and PVA] are subject to the discretionary function exception of the Federal Tort Claims Act.”6
The Discretionary Function Exception
The discretionary function exception seeks 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.”7 In U.S. v. Gaubert the Supreme Court “‘developed a two-step test to determine whether the government’s conduct meets the discretionary function exception.’”8 First, courts are required to “consider . . . whether the conduct involves ‘an element of judgment or choice.’”9 If the government adhered to “‘a federal statute, regulation, or policy specifically prescrib[ing] a course of action embodying a fixed or readily ascertainable standard,’”10 the conduct will be afforded the protection of sovereign immunity because it did not involve an element of judgment or choice. If not, the conduct still remains eligible for protection if it passes the second step of the Gaubert test: if the conduct that involved an element of judgment or choice “is grounded in considerations of public policy,”11 then the court must find that the conduct remains safely protected from attack behind the shield of sovereign immunity.
The Marking of the Wreck
Cranford and the Melechs first argued that the Coast Guard should be held liable based on its marking of the Fort Morgan Wreck. In addition to their belief that the Coast Guard had acted negligently by designating the wreck with only one marker, the plaintiffs also faulted the Coast Guard for its careless placement of that marker. Undisputed evidence indicated that the Coast Guard had initially “plac[ed] the marker 164 feet away from the wreck” and had never moved the marker closer to the wreck despite numerous reports of collisions with the wreck over the years.
Applying the first step of the Gaubert test, the court quickly concluded that the Coast Guard’s marking of the wreck “involved elements of judgment or choice.”12 After reviewing applicable statutes, regulations, and internal guidelines, the court noted the “broad discretion [that the Coast Guard had been given] in deciding how to mark a wreck.”13 More importantly, the court noted the plaintiffs’ “fail[ure] to identify ‘a federal statute, regulation, or policy [that] specifically prescribe[d] a course of action embodying a fixed or readily ascertainable standard.’”14
The court appeared willing to accept an argument that the Coast Guard failed to ground its decision in considerations of public policy; however, the plaintiffs advanced an ineffective argument that the Coast Guard had considered nothing more than the financial implications of its decision. Although the court agreed with the plaintiffs that “[f]inancial considerations alone may not make a decision one involving policy,”15 it found the government’s argument more persuasive. The government admitted that the Coast Guard had “evaluat[ed] . . . resource constraints,” but it also argued that the Coast Guard considered both “the knowledge and customs of international mariners” and the competing “needs of pleasure and commercial watercraft.”16
Because the Coast Guard’s marking of the Fort Morgan Wreck satisfied both the first and second steps of the Gaubert test, the court found that the Coast Guard had not waived its immunity.
The Decision Not to Remove the Wreck
Cranford and the Melechs also contended that the Coast Guard waived its immunity by failing to remove the Fort Morgan Wreck because, they claimed, the decision failed the first step of the Gaubert test. Pointing to a federal statute that “specifically prescribe[d] a course of action embodying a fixed or readily ascertainable standard,” the plaintiffs argued that the Coast Guard’s decision not to remove the wreck involved an impermissible “element of judgment or choice.”17 The plaintiffs argued that section 409 of the Wreck Act “impose[d] a nondiscretionary duty on the government to remove the . . . [w]reck” because of its prohibition against obstructing waters and the requirement that “owners promptly . . . remove sunken vessels.”18
The Eleventh Circuit applied a textual interpretation to dismiss the plaintiffs’ argument. First, the court reasoned that because the Wreck Act was enacted as part of the Rivers and Harbors Appropriation Act of 1899, the court had an obligation “to read [section 409] together with the other sections of that statute.”19 Since section 403 “authorize[d] the creation of obstructions, including breakwaters,” the court concluded “it would be absurd to read section 409 to require the government immediately to remove a vessel that it deliberately sank for a public purpose.”20 Finally, the court disagreed with the plaintiffs that section 409 imposed on the Coast Guard a nondiscretionary duty to remove the wreck. Because the last clause of section 409 explained that failure to remove a sunken vessel would merely “subject the [vessel] to removal by the United States,”21 the Eleventh Circuit interpreted such removal as discretionary.
The Eleventh Circuit did not analyze the Coast Guard’s decision not to remove the wreck under the second step of the Gaubert test since the plaintiffs conceded that the government’s intentionally sinking a vessel to serve as a breakwater represented a decision that clearly contemplated public policy considerations.
Conclusion
The federal government’s shield of sovereign immunity, though not impenetrable, has few weaknesses, and one of those weaknesses, waiver, boasts its own defense in the form of the discretionary function exception. Designed to prevent judicial second-guessing of legislative and administrative decisions, the discretionary function exception achieved its purpose in Cranford. Having found both of the plaintiffs’ claims subject to the exception, the Eleventh Circuit affirmed the district court’s dismissal of the case for lack of subject matter jurisdiction. The court acknowledged the horrific details of the Cranford-Melech tragedy, but the discretionary function exception’s application prevented the Eleventh Circuit from second-guessing either the Coast Guard’s marking of the Fort Morgan Wreck or its decision not to remove the wreck.
Endnotes
1. Cranford v. U.S., No. 06-10685, 2006 WL 2827680 at *1 (11th Cir. Oct. 5, 2006).
2. Id.
3. Id.
4. Id. at *2.
5. See Suits in Admiralty Act, 46 U.S.C. app. §§ 741-52 (2000) (covering claims that do not involve public vessels); Public Vessels Act, 46 U.S.C. app. §§ 781-90 (2000) (covering claims that do involve public vessels).
6. Cranford at *2.
7. Id. at *3 (quoting U.S. v. Gaubert, 499 U.S. 315, 322-23 (1991))., 719 F.2d 1272, 1281 (5th Cir. 1983).
8. Id.
9. Id.
10. Id.
11. Id. at *3.
12. Id. at *4.
13. Id.
14. Id. (2d alteration in original).
15. Id.. at *5 (alteration in original).
16. Id. at *4.
17. Id. at *2.
18. Id. at *5.
19. Id.
20. Id.
21. Id. (emphasis added) (alteration in original).