Sovereign Immunity Case Raises Question of Courts Lawyering for Parties

Michael Stephan

Last Thursday, the Ninth Circuit decided Tobar v. United States, a case dealing with sovereign immunity in the admiralty law context.  At first glance, Tobar appears to be a relatively straightforward decision about whether the United States has waived sovereign immunity from a suit brought by Ecuadorian fishermen who had their boat temporarily seized by the United States Coast Guard.  A close look at Tobar, however, reveals a very interesting question at issue: To what extent should courts investigate an issue or argument sua sponte when the party benefiting from that investigation failed to persuasively raise the issue or argument?  More colloquially: To what extent should courts lawyer for parties? (Yes, I’m using “lawyer” as a verb.)

The facts of Tobar are simple.  The United States Coast Guard stopped an Ecuadorian fishing boat near the Galapagos Islands, having suspected it of smuggling drugs.  The Coast Guard boarded the boat, searched it, and towed it to Ecuador for further investigation.  The Coast Guard eventually concluded that the boat contained no contraband, and no charges were filed.  The crew members then sued the United States for roughly $5 million in damages for “destruction of personal property, loss of their catch, loss of the use of the vessel, and public ridicule,” among other things.

The United States moved to dismiss on the grounds that it had not waived sovereign immunity and thus was immune from suit.  The plaintiffs argued to the contrary by citing the Public Vessels Act, which waives sovereign immunity for certain types of maritime torts if the national government of the foreign plaintiff would, in similar circumstances, allow U.S. citizens to sue it in its courts.  The district court found that the Ecuadorian crew members failed to establish the reciprocity requirement—i.e., that Americans can sue Ecuador in similar circumstances—and the Ninth Circuit “agree[d].”

But the Ninth Circuit vacated the decision anyway.  The Ninth Circuit panel explained that the district court had the discretion to conduct its own inquiry into the reciprocity requirement, even if the plaintiffs failed to prove reciprocity themselves.  The panel noted statutory and precedential authority stating that the district court “may ascertain” and “may consider” its own research.  Because the district court did not conduct its own investigation into reciprocity, the panel believed that the district court was unaware of its discretion to investigate, and the decision was vacated.

It’s worth noting that the district court had discretion to investigate the reciprocity issue, or not.  As the Ninth Circuit noted, the district court “could” research Ecuadorian law and “may” consider its own findings.  And although the relevant laws use the word “may”—thus indicating permission to do something—the Ninth Circuit opinion reads more as if the laws use the word “must”—thus indicating an obligation to do something.

This pseudo obligation raises the question of how much work, if any, a court should do for an unpersuasive party.  Should courts take a completely hands-off approach, letting the parties act as the sole investigators of their claims?  Should courts be required to look beyond parties’ arguments and inquire into the (sometimes foreign) laws that govern a case?  Or should we settle on some middle ground, such as giving courts the discretion to conduct their own investigations?  Discretion was the rule in the district court, but the Tobar panel seems to desire a slightly more generous bench.

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