Understanding waiver of sovereign immunity in gov’t seizure on the high seas

A waiver of sovereign immunity was cited by the Ninth Circuit Court of Appeals when it recently remanded a lawsuit against the U.S. government by an Ecuadorian fishing crew back to the lower court.

In Tobar v. United States, 24 crew members were listed as plaintiffs. They alleged that on October 5, 2005 near the Galapagos Islands in international waters, the Coast Guard negligently and unlawfully detained, searched and seized the boat, held the occupants against their will and destroyed their catch of fish for alleged possession and smuggling of illegal drugs.

They filed a $5 million lawsuit against the U.S. in Southern District of California Federal Court for "unlawful imprisonment, humiliation, pain and suffering, destruction of personal property, loss of their catch, loss of the use of the vessel, and public ridicule." That court dismissed the case on the grounds that the U.S. did not waive sovereign immunity which is a requirement for such international cases.

The doctrine of waiver of sovereign immunity can be traced back to English common law which declared that a state is immune from a civil or criminal action. Thus arose the saying "the king can do no wrong." The doctrine is also fittingly called "crown immunity."

According to Wikipedia, the U.S. has waived sovereign immunity on only limited occasions mainly by way of two regulations: 1) the Federal Tort Claims Act, where a federal worker causes damage in a tortious action. Tortious, or tort, means a wrong involving a breach of civic duty, and 2) the Tucker Act, which waives immunity over contract claims where the government is a party.

In Tobar, the court cited its previous ruling of IRS v. Fed. Labor Relations Auth. 521 F.3d 1148, 1152 (9th Cir. 2008). as the basis for raising the issue of sovereign immunity. Moreover, United States v. Mitchell 445 U.S. 535, 538 (1980), was cited to enforce the doctrine that the government must consent to be sued, however, said consent must be "unequivocably expressed, not implied." Soriano v. United States, 352 U.S. 270, 276 (1957), and Robinson v.United States, 586 F.3d 683, 685 (9th Cir. 2009), were two other cases used to support sovereign immunity.

Despite the preponderance of cases used to apply sovereign immunity in Tobar, Judge Susan B. Graber made it clear in her written opinion that there are grounds where the U.S. could be sued in a search and seizure on the high seas. In order to do so, it must be determined if immunity was waived by any of three federal acts:

1) Under the Public Vessels Act, (46 U.S.C. § 31102(a)(1). foreign nationals may sue the U.S. if their own countries would allow a similar suit to be brought before them by a U.S. national.

2) The Suits in Admiralty Act allows exceptions to waive sovereign immunity if a civil case could not otherwise be brought forward if the U.S. were not a party (28 U.S.C. § 2680).

3) The Federal Tort Claims Act waives immunity only in "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred," (28 U.S.C. § 1346(b).)

In Tobar, the Ninth Circuit agreed that there was no waiver of sovereign immunity but vacated the dismissal and remanded the case back to the lower court to determine whether evidence had been introduced supporting reciprocity under Ecuadorian law.