New Sovereign Immunity case from Ninth Circuit – Tobar v. USA

New case from the Ninth Circuit Court of Appeals addressing the United States government's immunity from suits in the law enforcement context. The opinion is Tobar v. USA, 2011 U.S. App. LEXIS 8173 and can be found here. From the opinion: Plaintiffs are Ecuadorian crew members of a fishing boat. The United States Coast Guard saw their boat in international waters near the Galapagos Islands and suspected it of involvement with smuggling drugs. The Coast Guard stopped Plaintiffs' boat and boarded it. Tests performed on the vessel yielded suspicious but inconclusive results and, with the consent of the Ecuadorian government, the Coast Guard towed the boat to Ecuador. Further tests conducted by the Ecuadorian government uncovered no contraband, and no charges were filed against Plaintiffs. Plaintiffs then sued the United States for damages resulting from these events. The district court held that the United States had not waived its sovereign immunity over this action and, accordingly, dismissed the action. Reviewing de novo, Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir. 2009), we affirm in part, vacate in part, and remand. The case was on appeal from the district court's granting of the United States' motion to dismiss under Fed. R. Civ. P. 12(b)(1). The court found no waiver of sovereign immunity under various statutes, but ultimately vacated the dismissal and remanded on whether the Public Vessels Act provided a basis for Plaintiffs' claims. The PVA, 46 U.S.C. 31102, allows suits against the United States by foreign nationals if their countries would similarly allow a suit. This is called a reciprocity requirement. Because, in the court's opinion, the parties had not introduced evidence of Ecuadorian law and whether there was reciprocity, the court remanded the case to the trial judge for such a determination.

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