                                                                  [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                 No. 06-10685               OCTOBER 5, 2006
                           ________________________        THOMAS K. KAHN
                                                               CLERK
                      D. C. Docket No. 04-00561-CV-CB-M

EDDIE TYRONE CRANFORD,

                                                 Plaintiff-Counter-
                                                 Defendant-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                 Defendant-Counter-
                                                 Claimant-Third-Party-
                                                 Plaintiff-Appellee,

                                    versus

HOWARD MELECH,
DIANE G. MELECH,
as Personal Representative and
Administratrix of the Estate of
Ronald C. Melech, deceased,

                                                 Third-Party-Defendants-
                                                 Appellants.
                           ________________________

                   Appeals from the United States District Court
                      for the Southern District of Alabama
                         _________________________

                                 (October 5, 2006)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PRYOR, Circuit Judge:

      The issue in this appeal is whether the “discretionary function exception” to

the waivers of sovereign immunity in the Suits in Admiralty Act and the Public

Vessels Act applies to decisions of federal officials in marking and choosing not to

remove a submerged wreck. Eddie Tyrone Cranford, Howard Melech, and Diane

Melech filed complaints against the United States regarding personal injuries and

death suffered in an allision of a pleasure boat and a submerged wreck. Their

complaints alleged negligence by the government, and the district court dismissed

the complaints for lack of subject matter jurisdiction. Because we conclude the

marking of a submerged wreck and the refusal to remove it are discretionary

decisions grounded in social, political, and economic policy, we affirm.

                                I. BACKGROUND

      On August 9, 2003, a seventeen-foot motor boat operated by Ronald Melech

and carrying Howard Melech and Eddie Cranford struck a submerged object in



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Mobile Bay, approximately 100 yards north of Fort Morgan beach. At the time of

the allision, the boat was traveling eastward parallel to the shore at approximately

30 miles an hour. Upon impact, Cranford and Ronald Melech were thrown from

the boat and injured. Cranford was injured, and Ronald Melech died. Howard

Melech, who was also injured, helped Cranford back into the boat, but Ronald

Melech’s body was not found until the next day.

      The motor boat struck a submerged vessel, known as the Fort Morgan

Wreck. Where closest to the surface of the water, the wreck is between 6 and 18

inches below the surface. The Melechs and Cranford presented evidence, which

the district court concluded is likely to be admissible, that the submerged wreck is

a former United States Army Mine Planter deliberately sunk in the 1930s by the

federal Works Progress Administration to serve as a breakwater. The government

asserts that it does not know if these facts are accurate.

      The Coast Guard initially charted and marked the wreck in 1992 with a

temporary lighted buoy. In 1996, the Coast Guard replaced the temporary buoy

with a telephone-pole-type piling, driven into the bed of Mobile Bay

approximately 164 feet north-northwest of the part of the wreck closest to the

surface. The piling bore two orange and white signs with the words “Danger

Wreck.” Over the years, the Coast Guard received reports of vessels striking the



                                            3
wreck despite the marking. After a request from the Alabama Department of

Conservation, the Coast Guard again modified the marker on August 5, 2003, and

replaced the signs with a flashing light and a six-foot-wide red triangle with the

letters “WR2.” At the time of the allision, the marker consisted of the piling, the

flashing light, and the red triangle.

      Cranford, Howard Melech, and Diane Melech, the wife of the deceased

Ronald Melech, filed separate complaints against the government in federal court,

which were consolidated for purposes of discovery. They alleged that negligence

of the government in marking the Fort Morgan Wreck and in refusing to remove it

caused the death of Ronald Melech and personal injuries to Cranford and Howard

Melech. They alleged that the district court had jurisdiction over their claims

under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, the Suits in

Admiralty Act, 46 U.S.C. app. §§ 741-52, the Public Vessels Act, 46 U.S.C. §§

781-90, and the Wreck Act, 33 U.S.C. §§ 409, 411, 412, 414 and 415.

      The government moved to dismiss the complaints for lack of subject matter

jurisdiction on the ground that the United States had not waived its sovereign

immunity. The district court granted the motions. The district court relied on

United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267 (1991), and concluded that

the marking of the Fort Morgan Wreck and refusal to remove it fell within the



                                          4
“discretionary function exception” of the Federal Tort Claims Act, see 28 U.S.C.

§ 2680(a), and that the waivers of sovereign immunity in the Suits in Admiralty

Act and the Public Vessels Act did not apply.

                            II. STANDARD OF REVIEW

       “We review de novo the district court’s dismissal of the action for lack of

subject matter jurisdiction.” Ochran v. United States, 117 F.3d 495, 499 (11th Cir.

1997). “[W]e view the facts in the light most favorable to the plaintiff.” Parise v.

Delta Airlines, Inc., 141 F.3d 1463, 1465 (11th Cir. 1998).

                                  III. DISCUSSION

       To resolve this appeal, we must address three matters: (1) the legal standard

for the discretionary function exception; (2) whether the marking of the Fort

Morgan Wreck falls within the exception; and (3) whether the refusal to remove

the wreck falls within the exception. Although the parties are in sharp conflict on

every issue, we agree with the arguments of the government and the decision of the

district court.

                  A. The Discretionary Function Exception Is Governed
                             by Gaubert, Not Drake Towing.

       The United States is immune from suit unless it consents to be sued. United

States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769 (1941). The Suits in

Admiralty Act (SAA), 46 U.S.C. app. §§ 741-52, provides a waiver of sovereign

                                           5
immunity and the “sole jurisdictional basis for admiralty claims against the United

States,” Mid-South Holding Co., Inc. v. United States, 225 F.3d 1201, 1203 (11th

Cir. 2000), that do not involve public vessels, see Marine Coatings of Ala., Inc. v.

United States, 71 F.3d 1558, 1560-61 & n.3 (11th Cir. 1996). The Public Vessels

Act (PVA), 46 U.S.C. §§ 781-90, provides a waiver of sovereign immunity for

admiralty claims involving public vessels. Both waivers are subject to the

discretionary function exception of the Federal Tort Claims Act (FTCA). See Mid-

South Holding, 225 F.3d at 1203-04 (applying exception to waiver in SAA); U.S.

Fire Ins. Co. v. United States, 806 F.2d 1529, 1535 (11th Cir. 1986) (applying

exception to waiver in PVA).

      Because the government has raised a factual challenge to subject matter

jurisdiction, the Melechs and Cranford must establish that the discretionary

function exception does not apply. See OSI, Inc. v. United States, 285 F.3d 947,

951 (11th Cir. 2002). The Supreme Court in Gaubert “developed a two-step test to

determine whether the government’s conduct meets the discretionary function

exception.” Miles v. Naval Aviation Museum Found., Inc., 289 F.3d 715, 720

(11th Cir. 2002) (citing Gaubert, 499 U.S. at 322-23, 111 S. Ct. at 1273-74). We

consider first whether the conduct involves “‘an element of judgment or choice,’”

OSI, Inc., 285 F.3d at 950 (quoting Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273),



                                          6
which will be the case unless “‘a federal statute, regulation, or policy specifically

prescribes a course of action embodying a fixed or readily ascertainable standard.’”

Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (quoting Autery v.

United States, 992 F.2d 1523, 1529 (11th Cir. 1993)). The conduct need not be

“confined to the policy or planning level.” Gaubert, 499 U.S. at 325, 111 S. Ct. at

1275.

        We then ask whether the judgment or choice is grounded in considerations

of public policy, because the “purpose of the [discretionary function] exception is

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.’” Id. at 322-23, 111 S. Ct. at 1273-74 (quoting United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104

S. Ct. 2755, 2765 (1984)). “When established governmental policy, as expressed

or implied by statute, regulation, or agency guidelines, allows a [g]overnment

agent to exercise discretion, it must be presumed that the agent’s acts are grounded

in policy when exercising that discretion.” Id. at 324, 111 S. Ct. at 1274. Our

inquiry does not focus either on the subjective intent of the government agent, id.

at 325, 111 S. Ct. at 1275, or on whether the agent actually weighed policy

considerations, OSI, Inc., 285 F.3d at 950-51, but “on the nature of the actions



                                           7
taken and on whether they are susceptible to policy analysis,” Gaubert, 499 U.S. at

325, 111 S. Ct. at 1275. To succeed, the Melechs and Cranford must establish

“that the challenged actions are not the kind of [discretionary] conduct that can be

said to be grounded in the policy of the regulatory regime.” Id. Such conduct

includes, for example, “dr[iving] an automobile on a mission connected with . . .

official duties.” Id. at 325 n.7, 111 S. Ct. at 1275 n.7.

      The Melechs and Cranford contend that we should be guided by two of our

earlier decisions: Drake Towing Co., Inc. v. Meisner Marine Construction Co., 765

F.2d 1060 (11th Cir. 1985), and U.S. Fire Insurance Co. v. United States, 806 F.2d

1529. We disagree. Our holdings in Drake Towing and U.S. Fire Insurance both

turned expressly on the principle that “operational” conduct falls outside the

discretionary function exception, see Drake Towing, 765 F.2d at 1064; U.S. Fire

Insurance, 806 F.2d at 1535-37, and the Supreme Court rejected that principle in

Gaubert. See 499 U.S. at 326, 111 S. Ct. at 1275; see also Autery, 992 F.2d at

1527. We do not follow precedents that are “clearly inconsistent” with an

intervening decision of the Supreme Court. See Garrett v. Univ. of Ala. at

Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003).

      The Melechs and Cranford would have us rule that the discretionary function

exception does not apply to the execution of a governmental decision, but this



                                            8
argument merely restates the operational conduct distinction rejected in Gaubert.

The Melechs and Cranford rely on Indian Towing Co. v. United States, 350 U.S.

61, 76 S. Ct. 122 (1955), and contend that the discretionary function exception

does not apply “once the [g]overnment exercise[s] its discretion to warn the public

of a danger, [because] it ha[s] a mandatory ‘hornbook tort law’ obligation to

perform its task ‘in a careful manner.’” This argument fails. We have previously

explained that “[t]his interpretation of Indian Towing . . . has been severely

undercut, if not altogether disavowed, by the Supreme Court in Gaubert,” Ochran,

117 F.3d at 505, and in any event, the government did not invoke the discretionary

function exception in Indian Towing, see Monzon v. United States, 253 F.3d 567,

572 (11th Cir. 2001).

              B. The Marking of the Fort Morgan Wreck Falls Within
                      the Discretionary Function Exception.

      The Melechs and Cranford challenge several decisions of the Coast Guard in

marking the Fort Morgan Wreck, such as placing the marker 164 feet away from

the wreck and using only one marker, but all of these decisions involved elements

of judgment or choice. The pertinent statute, regulations, and internal policy allow

the Coast Guard broad discretion in deciding how to mark a wreck. The statute

that grants the Coast Guard authority to mark wrecks provides, “The Secretary may

mark . . . any sunken vessel or other obstruction existing on the navigable

                                           9
waters . . . of the United States in such manner and for so long as, in his judgment,

the needs of maritime navigation require.” 14 U.S.C. § 86 (emphasis added). The

relevant regulations provide that the Coast Guard “may mark for the protection of

maritime navigation any structure, sunken vessel or other obstruction that is not

suitably marked by the owner.” 33 C.F.R. § 64.33(a) (emphasis added). The Aids

to Navigation Administration Manual (“ATON Manual”), which contains internal

guidelines of the Coast Guard regarding the marking of wrecks, states that “the

Coast Guard retains the discretion to deviate or authorize deviation from” its

“requirements.” The ATON Manual creates “no duties or obligations to the public

to comply with the procedures” described in it, and the ATON Manual states that

“no member of the public should rely upon the[] procedures as a representation by

the Coast Guard as to the manner of performance of [the] aids to navigation

mission.” The Melechs and Cranford fail to identify “‘a federal statute, regulation,

or policy [that] specifically prescribes a course of action embodying a fixed or

readily ascertainable standard.’” Hughes, 110 F.3d at 768 (quoting Autery, 992

F.2d at 1529).

      The closer question is whether the decisions of the Coast Guard in marking

the Fort Morgan Wreck were “susceptible to policy analysis” and “the kind of

conduct that can be said to be grounded in the policy of the regulatory regime.”



                                          10
Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275. The government persuasively

explains that decisions in marking a wreck involve social, political, and economic

policy considerations, such as taking into account the knowledge and customs of

international mariners, balancing the needs of pleasure and commercial watercraft,

and evaluating agency resource constraints, which include but are not limited to

financial concerns. The Melechs and Cranford respond that these considerations

are not “true policy judgments.” They assert that these considerations are merely

the application of professional standards, not policy decisions; all discretionary

conduct by the government involves budgetary considerations; and none of the

asserted considerations implicate “national policy.”

      We agree with the government for three reasons. First, the contention that

the Coast Guard applied professional standards “is just another way of saying that

the considerations . . . are so precisely formulated that decisions at the operational

level never involve the exercise of discretion within the meaning of [the

discretionary function exception], a notion that [the Supreme Court] ha[s] . . .

rejected.” Id. at 331, 111 S. Ct. at 1278. It “may be that certain decisions resting

on mathematical calculations, for example, involve no choice or judgment in

carrying out the calculations,” but the decisions of the Coast Guard in marking a

wreck “are not of that genre.” Id. Second, although “[w]e recognize that . . .



                                           11
budgetary constraints are almost always important to government decisions,”

Ochran, 117 F.3d at 502, and “[f]inancial considerations alone may not make a

decision one involving policy,” Hughes, 110 F.3d at 769, the decisions of the coast

guard involved more than financial considerations. Third, nothing in our case law

supports the Melechs’ and Cranford’s assertion that policy considerations must

implicate “national” policy. The Melechs and Cranford ask us to review evidence

regarding the actual considerations of the decisionmakers for the Coast Guard, but

we do not focus either on the subjective intent of the government agents, Gaubert,

499 U.S. at 325, 111 S. Ct. at 1275, or on whether the agents actually weighed

policy considerations, OSI, Inc., 285 F.3d at 950-51.

          C. The Decision Not To Remove the Fort Morgan Wreck Falls
                  Within the Discretionary Function Exception.

      The Melechs and Cranford also challenge the refusal of the government to

remove the Fort Morgan Wreck. They contend that this decision fails the first step

of the Gaubert test because a section of the Wreck Act, 33 U.S.C. § 409, allegedly

imposes a nondiscretionary duty on the government to remove the Fort Morgan

Wreck. The Melechs and Cranford assert that the government, as the alleged

owner of the sunken vessel, must “commence the immediate removal of [the

vessel] and prosecute such removal diligently.” 33 U.S.C. § 409. We disagree.

      Although we view in the light most favorable to the Melechs and Cranford

                                         12
the evidence that the government deliberately sank the vessel for a legitimate

public purpose, the removal requirement in the Wreck Act does not apply to the

government in this circumstance. Cf. Chute v. United States, 610 F.2d 7, 11 (1st

Cir. 1979) (concluding that deliberate creation of a wreck by government for Navy

target practice not subject to Wreck Act). The Wreck Act became law as part of

the Rivers and Harbors Appropriation Act of 1899, and it must be read together

with the other sections of that statute. See Swain v. Schweiker, 676 F.2d 543, 546

(11th Cir. 1982) (“[S]tatute must be considered as a whole . . . .”). Section 409

specifically prohibits the obstruction of navigable waters by vessels and requires

owners promptly to remove sunken vessels, but an earlier section of the statute,

section 403, speaks to “[o]bstruction of navigable waters generally” and provides

that the government may authorize the creation of obstructions, including

breakwaters. 33 U.S.C. § 403 (emphasis added). Were section 403 not to exist, 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. See Regions Bank v.

Provident Bank, Inc., 345 F.3d 1267, 1276 (11th Cir. 2003) (“[T]he Supreme Court

has repeatedly held that ‘[i]f possible, [a court] should avoid construing [a] statute

in a way that produces [ ] absurd results.’” (quoting Dewsnup v. Timm, 502 U.S.

410, 427, 112 S. Ct. 773, 783 (1992))); see also Green v. Bock Laundry Mach. Co.,



                                           13
490 U.S. 504, 527, 109 S. Ct. 1981, 1994 (1989) (Scalia, J., concurring) (noting

that a statute must be construed to avoid “unthinkable” and “bizarre” results). In

addition, the last clause of section 409 evidences that the removal requirement does

not apply to the government in any circumstance, because failure to comply with

that requirement subjects a sunken vessel to discretionary removal by the

government. 33 U.S.C. § 409 (stating that failure to remove a sunken vessel “shall

be considered as an abandonment” of the vessel and “subject the [vessel] to

removal by the United States”); see also Buffalo Bayou Transp. Co. v. United

States, 375 F.2d 675, 677 (5th Cir. 1967) (holding that section 409 does not require

the United States to remove “each sunken vessel in navigable waters”).

      The remaining issue involves whether the refusal of the government to

remove a wreck that it intentionally sank for a public purpose necessarily

implicates public policy. The Melechs and Cranford understandably offer no

argument that this decision was not “susceptible to policy analysis.” Gaubert, 499

U.S. at 325, 111 S. Ct. at 1275. We conclude that the decision not to remove the

wreck is shielded from judicial second-guessing by the discretionary function

exception.




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                        IV. CONCLUSION

The dismissal of the complaints of the Melechs and Cranford is

AFFIRMED.




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