     Case: 14-20435      Document: 00513075288         Page: 1    Date Filed: 06/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 14-20435                               FILED
                                                                             June 11, 2015
                                                                            Lyle W. Cayce
MARTIN OPERATING PARTNERSHIP, L.P.,                                              Clerk

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; UNITED STATES COAST GUARD,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3483


Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Plaintiff-Appellant Martin Operating Partnership, L.P. (“Martin”)
appeals from the district court’s final judgment dismissing Martin’s claims
under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), and the Suits
in Admiralty Act (SIAA), 46 U.S.C. § 30901 et seq., against Defendants-
Appellees the United States of America and the United States Coast Guard
(collectively, the “Coast Guard”) under Federal Rules of Civil Procedure


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 14-20435
12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction based on the
discretionary function exception to both statutes. Martin also appeals from
the district court’s discovery order permitting the government to withhold
certain documents under the deliberative process privilege. We affirm.
I.    Background

      Martin owns a tank-barge vessel, the PONCIANA (the “Vessel”), which
must obtain a Certificate of Inspection every five years from the United
States to continue operating in U.S. waters.      The Vessel’s Certificate of
Inspection was set to expire on March 7, 2011, so it would require an
inspection around that time. In early October of 2010, approximately five
months prior to the scheduled certification inspection, Martin reportedly
hand-delivered to the Coast Guard a package with information on both the
Vessel and a gas-free operation that Martin planned on performing at the
shipyard before the inspection. The gas-free operation was intended to purge
the Vessel’s tanks of any residual cargo, in this case iso-butane gas, using a
portable vapor destruction unit (flare system) made by John Zink Company.
      In early October of 2010, a Coast Guard representative sent a letter to
Martin, explaining that he had examined the packet but needed more
information on the proposed gas-free operation. Martin replied in mid-
October, explaining that it was prudent to flare off the gas before the
inspection in case “hot work” was needed based on the inspections, and in
case Martin decided to seek a re-rating of the tanks for a higher capacity.
Martin’s letter did not explain any more details concerning the procedure
other than its purpose.
      Without receiving either an approval or objection from the Coast
Guard, Martin proceeded to get approval for the gas-free operation from the
Florida Environmental Protection Commission (“EPC”) in dry dock at
International Ship Repair (“ISR”), a third-party company. This information
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                                    No. 14-20435
was forwarded to the Coast Guard. In January of 2011, Martin advised the
Coast Guard that the Vessel would arrive in Tampa, Florida, on March 2,
2011, to conduct the gas-free operation at ISR’s facility. On March 1, as the
Vessel traveled from the Philadelphia area toward Tampa, the Coast Guard
requested proof of the EPC’s approval for the gas-free operation, which
Martin then forwarded to the Coast Guard. On March 2, 2011, the Coast
Guard informed Martin for the first time that it objected to the gas-free
operation.
      The Coast Guard objected on March 2 pursuant to 33 C.F.R. § 154,
which applies generally to “each facility that is capable of transferring oil or
hazardous materials, in bulk, to or from a vessel.” 1 Both Martin and Ted
Humphreys of ISR corresponded with the Coast Guard, sending additional
information on the gas-free operation.
      On March 3, 2011, the Coast Guard emailed Humphreys stating that
the gas-free operation must take place at a facility approved under 33 C.F.R.
§ 127, which generally governs cargo transfers for waterfront facilities
handling liquefied natural gas and liquefied hazardous gas, and Humphreys
forwarded the email to Martin. Martin corresponded with the Coast Guard,
attempting to convince it that § 127 did not apply because the tank-cleaning
operation did not qualify as a cargo transfer, seeking written reasons for the
objection, and requesting (without success) a meeting with the Coast Guard
Captain of the Port (“COTP”) to discuss the objections.
      To comply with the Coast Guard’s requirement that the gas-free
operation take place at a facility certified under § 127, Martin decided to
perform the operation at a certified facility owned by Sea-3 of Florida, Inc.,
with the approval of the EPC. On March 4, the operations superintendent of


      1   33 C.F.R. § 154.100.
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                                No. 14-20435
the Tampa Port Authority notified a number of people, including Coast
Guard personnel, that Martin planned to carry out the gas-free operation
either on March 4 or 5 at Sea-3; the email noted that “LCDR Whidbee of the
USCG is also aware of it and will be recommending approval to CAPT
Dickinson [of the Coast Guard].”
      Coast Guard COTP Sharon Dickinson did not, in fact, approve the
operation. Instead, on Friday, March 4, she issued Order 11-010, which
provided, in relevant part:
            I have received a request to transfer Liquefied
            Hazardous Gas (LHG) from Martin Marine Tank
            Barge PONCIANA to [Sea-3] using the John Zink
            Gas Flare System (“the system”). After careful review
            of the applicable regulations and the documentation
            provided I have determined that the proposed
            transfer does not meet the requirements of 33 CFR
            127, Subparts A and C. The applicable regulations
            provide for design, construction and operation
            requirements to ensure the safe transfer of LHG to
            and from vessels. The system proposed to be used for
            the transfer of the product from the Tank Barge
            PONCIANA does not comply with the requirements
            of 33 CFR 127, and as such, poses a hazard to the
            vessel, the facility, the port, and the surrounding
            waterway. I cannot determine through the
            documentation and proposal that has been presented
            that the operation can be completed without
            presenting an unsafe operating condition. Therefore,
            under the authority of the Ports and Waterways
            Safety Act, 33 USC 1221, et seq., I hereby issue the
            following Order:

            1.    Transfer of Isobutane from the Martin
                  Marine Tank Barge PONCIANA to Sea 3
                  using the John Zink Gas Flare System for
                  the purpose of flaring and purging the
                  barge is prohibited.


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                                      No. 14-20435
       Although the Order was directed to Martin, Martin claims it never
received the Order until Monday, March 7. Kevin Wertman of Sea-3 began
corresponding with the Coast Guard, seeking to obtain approval to perform
the gas-free operation. He provided the Coast Guard with more information
on the operation and the John Zink flare system.
       On March 8, Wertman sent an email to Martin saying that he had
spoken with the Coast Guard, and the Coast Guard had referenced
Navigation and Vessel Inspection Circular (“NVIC”) 1-96 and 33 C.F.R. §
154.806, with no mention of 33 C.F.R. § 127. NVIC 1-96 provides
“recommended safety standards for the design and operation of a marine VCS
[Vapor Control System] at tank barge cleaning facilities,” 2 while 33 C.F.R. §
154.806, at the time, related to VCS certification. 3 Martin asserts the Coast
Guard later agreed that NVIC 1-96 also did not apply.
       On March 9, Lieutenant Commander Andre Whidbee of the Coast
Guard emailed Wertman and let him know that he and his boss had just
talked to Coast Guard headquarters in Washington, DC, and “believe we
have identified the way ahead but are waiting for their official word so we
can start moving forward on this” by the end of the day. In the meantime, to
avoid any further problems with the Order, Martin opted to move the Vessel
to Houston to perform the gas-free operation there.
       On March 11, 2011, after additional review, the Coast Guard rescinded
Order 11-010, clearing the way for the gas-free operation to proceed. On
March 25, after the order was rescinded, Captain Dickinson conceded that
the Coast Guard’s initial determination that 33 C.F.R. § 127 applied was
based on mistaken facts, but she explained that, at the time, because the

       2See https://www.uscg.mil/hq/cg5/nvic/pdf/1996/n1-96.pdf.
       3 33 C.F.R. § 154.806 (2011). Section 154.806 was removed as part of comprehensive
revisions to the VCS regulations in a final rule effective August 15, 2013. See Marine Vapor
Control Systems, 78 Fed. Reg. 42596-01.
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                                 No. 14-20435
John Zink flare system had not been certified for use in a marine
environment, she “felt it was necessary to exercise my Captain of the Port
Authority to prevent damage to the port in accordance with 33 CFR 160.109,”
applicable to operations involving hazardous materials. In her opinion, “With
the safety of the marine environment as my mandate, I determined that
requiring a certification by a Coast Guard approved certifying entity would
be the most prudent action to allow the operation to proceed.”
      On April 21, Martin filed a formal administrative appeal of Captain
Dickinson’s “decision to not allow Martin . . . to perform a flaring operation of
the [Vessel] . . . beginning Friday March 4, 2011,” i.e., Order 11-010, seeking
a retraction of the Coast Guard’s decisions and monetary redress. Captain
Dickinson denied Martin’s appeal on May 6, 2011, noting that she had “based
my decision on the authority contained in 33 CFR 160.109” and explaining
that Martin could administratively appeal her denial. Martin did so.
      On October 12, 2012, Rear Admiral Baumgartner denied the appeal,
explaining that Order 11-010 had already been rescinded on March 11, 2011,
and that the Vessel had already departed from the port on the date it was
rescinded; accordingly, Rear Admiral Baumgartner concluded that the appeal
“is moot, and no action will be taken on your appeal.” He agreed that
“certification of the flare system is not required and is not necessarily the
most salient safety factor for the flaring operation.” Accordingly, he concluded
that “District Seven and Sector St. Petersburg will not consider your client’s
use of a mobile VDU [Vapor Destruction Unit] to gas free barges containing
liquefied hazardous gas (LHG) cargo residue at waterfront facilities not
designed as a facility handling LHG pursuant to 33 C.F.R. Part 127 as per se
unsafe.”
      However, he cautioned that “[p]ursuant to the Coast Guard’s authority
under the Ports and Waterways Safety Act (33 U.S.C. § 1221, et seq.), and
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                                    No. 14-20435
implementing regulations codified at 33 C.F.R. Part 160, the COTP retains
the responsibility to ensure the maritime safety and security of the
waterfront facility, the waterway, and the port.” Thus, the Coast Guard
would still require Martin to submit information detailing the procedure in
the future, which the Coast Guard would review on a case-by-case basis “to
ensure the safety of the flaring operation. The COTP retains the
discretionary authority to halt or prohibit any operation that adversely
impacts the safety of the waterfront facility, the waterway, or the port.”
       Martin received a final administrative denial on May 30, 2012, and
filed this lawsuit seeking $440,548 in actual damages. The Coast Guard filed
a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(h)(3) for lack of subject matter jurisdiction. It also asserted the
deliberative process privilege with respect to a number of documents
pursuant to 5 U.S.C. § 552(b)(5). As noted, the district court reviewed the
documents in camera and determined which documents or portions of
documents were protected by the privilege, ordering disclosure of the non-
privileged portions. Eventually the district court granted the motion to
dismiss based on the discretionary function exception to the FTCA and SIAA,
expressly declining to address the private party analogue issue, dismissing
the suit with prejudice. This appeal followed the district court’s denial of
Martin’s motion for a new trial.
II.    Applicable Law

       The bulk of this appeal concerns the district court’s dismissal for lack of
subject matter jurisdiction under Rule 12(b)(1), which we review de novo. 4




       4 Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009) (citing St. Tammany
Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009)).
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                                           No. 14-20435
          A.       The FTCA/SIAA Discretionary Function Exception

          The FTCA waives sovereign immunity under limited circumstances
and permits, under 28 U.S.C. § 1346(b)(1), suits against the United States
                   for money damages . . . for injury or loss of property
                   . . . caused by the negligent or wrongful act or
                   omission of any employee of the Government while
                   acting within the scope of his office or employment,
                   under 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[.] 5

          Among several exceptions to this waiver of sovereign immunity is the
discretionary function exception found in 28 U.S.C. § 2680(a), which exempts
from liability:
                   Any claim based upon an act or omission of an
                   employee of the Government, exercising due care, in
                   the execution of a statute or regulation, whether or
                   not such statute or regulation be valid, or based upon
                   the exercise or performance or the failure to exercise
                   or perform a discretionary function or duty on the
                   part of a federal agency or an employee of the
                   Government, whether or not the discretion involved
                   be abused. 6

          The SIAA, 46 U.S.C. §§ 30901 et seq., 7 waives sovereign immunity with
respect to certain admiralty claims, providing, in relevant part:
                   In a case in which, if a vessel were privately owned or
                   operated, or if cargo were privately owned or
                   possessed, or if a private person or property were
                   involved, a civil action in admiralty could be
                   maintained, a civil action in admiralty in personam



          5   28 U.S.C. § 1346(b)(1); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 535
(1988).
          6   28 U.S.C. § 2680(a).
          7   The SIAA was formerly found at 46 U.S.C. § 791 et seq.
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             may be brought against the United States or a
             federally-owned corporation. 8

Although the SIAA was enacted before the FTCA, courts have read into the
SIAA the same discretionary function exception found in § 2680(a). 9
      “The discretionary function exception, embodied in the second clause of
§ 2680(a), marks the boundary between Congress’ willingness to impose tort
liability upon the United States and its desire to protect certain
governmental activities from exposure to suit by private individuals.” 10 To
determine     whether     a   governmental       actor’s   conduct     qualifies    as   a
discretionary function, we must apply the Supreme Court’s two-part test.
       “First, the court considers whether the challenged conduct involved ‘an
element of judgment or choice.’” 11 This first prong cannot be met if a federal
statute, regulation, or policy mandates a particular course of action “because
the employee has ‘no rightful option but to adhere to the directive.’” 12 The
mere presence of mandatory language in a statute, regulation, or policy is not
dispositive, however, if room for discretion remains, and that discretion
includes the actions at issue. 13 The first prong is met if the applicable law




       8  46 U.S.C. § 30903(a).
       9  See Wiggins v. U.S. Through Dep’t of Army, 799 F.2d 962, 964 (5th Cir. 1986).
        10 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),

467 U.S. 797, 808 (1984).
        11 MS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of Comm’rs of Port of New

Orleans (MS Tabea), 636 F.3d 161, 165 (5th Cir. 2011) (quoting United States v. Gaubert,
499 U.S. 315 (1991)).
        12 Id. (quoting Gaubert, 499 U.S. at 322).
        13 See Davis v. United States, 597 F.3d 646, 650 (5th Cir. 2009) (“The Davis family

identifies some mandatory language in the Navy’s Search and Rescue Manual. Importantly,
though, the manual’s preface provides that a ‘rescue environment may require deviation
from procedures contained herein. Deviation from specified rescue procedures is authorized
in emergency situations when safety justifies such a deviation.’ Hurricane Katrina
presented the sort of emergency situation justifying a deviation from the manual’s
provisions. The acts of alleged negligence were discretionary decisions made by the
rescuers.”).
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“leaves it to a federal agency or employee to determine when and how to take
action.” 14
              Second, the court considers whether the judgment at
              issue is the kind the discretionary function exception
              was designed to protect, that is, whether it is
              grounded in social, economic, or public policy. When a
              statute, regulation, or agency guideline allows a
              Government agent to exercise discretion, “it must be
              presumed that the agent’s acts are grounded in policy
              when exercising that discretion.” In light of this
              presumption, to survive a motion to dismiss based on
              the discretionary function exception, a complaint
              “must allege facts which would support a finding that
              the challenged actions are not the kind of conduct
              that can be said to be grounded in the policy of the
              regulatory regime.” In determining whether the
              exception bars a suit against the Government, our
              focus is on the nature of the action taken and
              whether that action is susceptible to policy analysis. 15

       As the Supreme Court explained in Varig Airlines, “whatever else the
discretionary function exception may include, it plainly was intended to
encompass the discretionary acts of the Government acting in its role as a
regulator of the conduct of private individuals.” 16 The “underlying basis” for
the exception is that “Congress wished 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” in order “to protect
the Government from liability that would seriously handicap efficient
government operations.” 17
       “The focus of the inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or regulation, but on the nature

       14 MS Tabea, 636 F.3d at 166 (citing Gaubert).
       15 Id. (citations to Gaubert and Varig Airlines omitted).
       16 Varig Airlines, 467 U.S. at 813-14 (footnote omitted).
       17 Id. at 814 (citation and internal quotation marks omitted).

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                                       No. 14-20435
of the actions taken and on whether they are susceptible to policy analysis.” 18
As the District of Columbia Circuit has summarized:
              The Supreme Court has emphasized, however, that
              the issue is not the decision as such, but whether the
              “nature” of the decision implicates policy analysis.
              What matters is not what the decisionmaker was
              thinking, but whether the type of decision being
              challenged is grounded in social, economic, or
              political policy. Evidence of the actual decision may
              be helpful in understanding whether the “nature” of
              the decision implicated policy judgments, but the
              applicability of the exemption does not turn on
              whether the challenged decision involved such
              judgments. 19

Because the focus is on the type of decision and not how it was actually made,
it is irrelevant whether the decisionmaker was negligent, abused his or her
discretion, or even failed to exercise discretion at all. 20 Those issues go to the
merits of the case, if the claimant can overcome the discretionary function
exception.
       B.     The Coast Guard’s Regulatory Authority

       The parties agree that the source of the Coast Guard’s authority in this
case is the Ports and Waterways Safety Act (PWSA), 33 U.S.C. § 1221 et seq.,
specifically the broad grant of discretion in the interest of safety in 33 U.S.C.



       18 Gaubert, 499 U.S. at 325. See also Spotts v. United States, 613 F.3d 559, 573 (5th
Cir. 2010) (“Whatever Maldonado’s actual decisionmaking process, it is clear that the
health, safety, financial, and other feasibility concerns implicated by the evacuation
decision render that decision susceptible to policy analysis.”); Demery v. U.S. Dep’t of
Interior, 357 F.3d 830, 833 (8th Cir. 2004) (“The judgment or decision need only be
susceptible to policy analysis, regardless of whether social, economic, or political policy was
ever actually taken into account, for the exception to be triggered.” (citing C.R.S. by D.B.S.
v. United States, 11 F.3d 791, 801 (8th Cir. 1993)).
       19 Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995) (citations omitted).
       20 See 107 Am. Jur. Proof of Facts 3d 241 §§ 23-24 (2009; Supp. Feb. 2015) (collecting

cases); 28 U.S.C. § 2680(a) (providing that the exception applies “whether or not the
discretion involved be abused”).
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§ 1223(b)(3), which authorizes the Secretary to “order any vessel . . . to
operate or anchor in a manner he directs if,” for any of various broad reasons,
“he is satisfied that such directive is justified in the interest of safety.” 21
Section 1223 is made subject to § 1224, which provides that, “[i]n carrying out
his duties and responsibilities under section 1223 of this title, the Secretary
shall . . . take into account all relevant factors concerning navigation and
vessel safety, protection of the marine environment, and the safety and
security of United States ports and waterways. 22 The statute lists nine non-
exclusive factors, including “the scope and degree of the risk or hazard
involved.” 23 In addition, the Secretary is directed to, “at the earliest possible
time, consult with and receive and consider the views of representatives of
the maritime community, ports and harbor authorities or associations,
environmental groups, and other parties who may be affected by the proposed
actions.” 24
       The Coast Guard has promulgated a number of regulations within the
scope of this broad grant of discretion. Some of these, such as 33 C.F.R. Part
127 (covering the transfer of liquefied natural gas and liquefied hazardous
gas) impose certain requirements for specific situations. Others apply more
generally to the application of the PWSA, including 33 C.F.R. Part 160,
concerning the control of vessel and facility operations under the PWSA. In
these regulations, 33 C.F.R. § 160.109 provides authority to issue broad
orders to protect bridges and other structures on or in navigable waters,
adjacent structures, and the waters themselves “from harm resulting from
vessel or structure damage, destruction, or loss.” 25 Section 160.111 provides


       21 33 U.S.C. § 1223(b)(3).
       22 33 U.S.C. § 1224(a).
       23 Id.
       24 33 U.S.C. § 1224(b).
       25 33 C.F.R. § 160.109(a).

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                                       No. 14-20435
similarly broad authority to “order a vessel to operate or anchor in the
manner directed” when, for example, “[t]he District Commander or Captain of
the Port has determined that such order is justified in the interest of safety
by reason of weather, visibility, sea conditions, temporary port congestion,
other temporary hazardous circumstances, or the condition of the vessel.” 26
III.     The Coast Guard’s Actions Are Subject to the Discretionary
         Function Exception.

         Given the broad statutory and regulatory scheme set out above, we
must conclude that the Coast Guard’s decisions in this case, which were
premised on safety concerns, fell within the broad scope of the Coast Guard’s
discretion to issue orders in the interest of safety. The district court’s decision
was based primarily on its finding that the Coast Guard acted pursuant to
the PWSA, and Martin concedes that the PWSA provides the Coast Guard
discretion to issue safety orders. Nevertheless, Martin argues that the Coast
Guard’s actions in this case are not protected by the discretionary function
exception for three reasons: (1) the Coast Guard failed to follow certain
mandatory non-discretionary requirements to “activate” that authority and
therefore is not protected by the discretionary function exception; (2) the
Coast Guard did not act within its discretion because it incorrectly concluded
certain regulations applied when in fact they did not; and (3) the Coast
Guard’s approximately five-month delay in objecting to Martin’s plans fell
outside the discretionary function. We conclude there is no merit to any of
these arguments.
         A.       The Coast Guard Did Not Fail To Fulfill Any Mandatory,
                  Non-Discretionary Acts.

         Martin argues first that the Coast Guard failed to comply with
mandatory, non-discretionary prerequisites to exercising its discretion, such

         26   33 C.F.R. § 160.111.
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                                     No. 14-20435
that the discretionary function exception cannot apply. Specifically, Martin
claims that although 33 U.S.C. § 1223(b)(3) grants the Coast Guard broad
discretion, it cannot exercise that discretion unless it complies with 33 U.S.C.
§ 1224’s mandatory requirement that it “shall” consider all the relevant listed
factors and consider the views of others, including “other parties who may be
affected by the proposed actions.” Martin argues that only by carrying out
§ 1224’s mandatory requirements may the Coast Guard “activate” its
discretion under § 1223, and claims the Coast Guard presented no record
evidence that it satisfied the supposedly mandatory requirements.
      There are two problems with Martin’s argument. First, mandatory
language in a statute, regulation, or policy does not automatically remove all
discretion. 27 Here, although § 1224 requires the Coast Guard to consider
certain factors in arriving at a decision, it does not dictate how the Coast
Guard must do so, leaving a great deal of discretion in how to carry out its
decisionmaking and how to document that process, if at all.
      Second, there is ample evidence in the record that the Coast Guard
satisfied this duty. At the outset, the Coast Guard requested more
information on the gas-free operation. Beginning March 1, the Coast Guard
was in frequent contact with Martin and Martin’s contacts at ISR and Sea-3
seeking relevant information on the operation so it could determine whether
it was safe. Although the Coast Guard initially misinterpreted those facts,
the record amply demonstrates that the Coast Guard satisfied its general
duty under § 1224 to consider all relevant factors and seek input from
affected parties.
      Martin also argues, unpersuasively, that the Coast Guard violated
mandates in its own internal procedures set out in the Coast Guard’s Marine

      27  See, e.g., Davis, 597 F.3d at 650 (mandatory language in a manual did not remove
discretion from actions at issue).
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                                    No. 14-20435
Safety     Manual      (“MSM”)       and     Commandant         Instruction      3500.3
(“COMDTINST”). 28 Martin argues that these documents require Coast Guard
personnel to perform an Operational Risk Management analysis before
prohibiting any commercial marine activity, but it has pointed to no specific
mandatory requirements in them that would apply to remove the Coast
Guard’s discretion in this case. To the contrary, the MSM explicitly retains
discretion: “The MSM should be used as a guide for consistent and uniform
administration of marine safety activities, without undue hampering of
independent action and judgment by marine safety personnel.” 29
      In short, Martin has failed to show that the Coast Guard violated any
mandatory statutory or regulatory duty which might preclude application of
the discretionary function exception.
      B.     The Discretionary Function Exception Still Applies Even
             If the Coast Guard’s Analysis Was Incorrect.

      Next, Martin argues that the discretionary function cannot apply in
this case because the Coast Guard applied an incorrect regulation based on
its misunderstanding of the facts. Martin cites a single Supreme Court case,
Hatahley v. United States, 351 U.S. 173 (1956), for the proposition that a
federal agent acting under an inapplicable regulation operates outside his or
her discretion; it cites no other binding authority. Hatahley is inapposite
because it involved a decision that fell outside the federal agents’ legal




      28  The COMDTINST, which is incorporated by reference into the MSM, “outlines
procedures and responsibilities to implement” the standardized ORM policy but does not
appear to be self-implementing. The document even notes that implementation will vary
from unit to unit depending on resources, and that “smaller units are not expected to use
these implementation methods as frequently or thoroughly as larger units having more
resources.”
       29  See MSM at 1-2 (available at http://www.uscg.mil/directives/cim/16000-
16999/CIM_16000_6.pdf).
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                                      No. 14-20435
authority. 30 In this case, although the Coast Guard cited an inapplicable
regulation    based     on   a   factual    misunderstanding,        its   decision    was
unquestionably based on safety concerns and therefore remained well within
the Coast Guard’s broad discretionary authority under 33 U.S.C. § 1223(b)(3),
as well as the broad regulatory authority set out in 33 C.F.R. Part 160.
       Because the Coast Guard’s decision is susceptible to social, economic, or
public policy analysis, the discretionary function must apply even if the
decision was incorrect. Indeed, the discretionary function would apply even if
the Coast Guard had abused its discretion. 31 At worst, Martin has shown that
the Coast Guard was overly cautious and misinterpreted the facts concerning
the gas-free operation, which is insufficient to overcome the discretionary
function exception.
       C.     The Discretionary Function Exception Applies to the
              Coast Guard’s Delay in Objecting to Martin’s Gas-Free
              Operation.

       Finally, Martin argues that even if the Coast Guard was otherwise
acting within its discretionary authority in issuing the order, it had no
discretion to wait approximately five months after Martin’s first notice of its
intention to perform the gas-free operation before objecting “at the eleventh
hour.” Martin does not cite a single case under the FTCA for this proposition.
The only authority Martin cites relevant to the FTCA is 33 U.S.C. § 1224(b),




       30 In Hatahley, federal agents had seized horses of the Navajo Nation pursuant to a
federal and state statute. The agents had failed to comply with the notice provisions of the
Federal Range Code, however, so they were clearly acting entirely outside their statutory
authority. Accordingly, the Supreme Court determined that there was potential liability
under the FTCA.
       31 28 U.S.C. § 2680(a).

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                                    No. 14-20435
which Martin claims required the Coast Guard to determine whether the
operation was permissible “at the earliest possible time.” 32
      Section 1224(b) does not require the Coast Guard to make a decision “at
the earliest possible time.” Rather, it require that the Coast Guard, “at the
earliest possible time, consult with and receive and consider the views of
representatives of the maritime community, ports and harbor authorities or
associations, environmental groups, and other parties who may be affected by
the proposed actions.” The record shows that the Coast Guard did request
and receive additional information from Martin in early October of 2010,
shortly after Martin initially announced its plans, which would satisfy that
statutory duty.
      At any rate, Martin cannot use § 1224 to establish a duty to either
grant or object to its plans within a certain amount of time. Absent a
mandatory statutory or regulatory timeline for a decision, we refuse to
entangle the courts in the Coast Guard’s decisionmaking process by imposing
one now. We conclude that the Coast Guard’s delay in acting under these
circumstances falls within the discretionary function exception.
      D.     Because We Determine that the Discretionary Function
             Exception Applies, The Private Party Analogue Issue Is
             Moot.

      Martin argues that if we conclude its claims against the Coast Guard
are not barred by the discretionary function exception, we should also
address its argument that the Coast Guard would be liable if it were a
private person under applicable law (the “private person analogue”



      32  Martin cites to a number of common law authorities showing that a private party
might have a duty to speak up under these circumstances, but that issue more properly
concerns whether there is a private party analogue to the Coast Guard’s actions, as
addressed in the next section, not whether the Coast Guard’s actions concern a
discretionary function.
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                                      No. 14-20435
requirement). 33 Because we hold that dismissal is warranted under the
discretionary function exception, this issue is moot.
IV.     The District Court Did Not Err By Permitting the Government
        to Withhold Certain Documents from Production Pursuant to
        the Deliberative Process Privilege.

        Finally, Martin argues that the district court erred in upholding the
Government’s deliberative process privilege under 5 U.S.C. § 552(b)(5) over a
number of documents, in whole or in part. With respect to the privilege, we
review the district court’s legal determinations de novo and any findings of
fact for clear error. 34 Martin claims it needs these documents because they
are relevant to determining whether the Coast Guard adhered to the
mandatory statutory requirements, whether the Coast Guard truly acted
based on safety concerns, whether Coast Guard officials subjectively believed
they were exercising proper statutory or regulatory authority, and whether
they acted in an arbitrary and capricious manner in this case.
        As explained above, the record already establishes that the Coast
Guard satisfied any applicable mandatory requirements, so additional
documents are irrelevant to that issue. As a matter of law, Martin’s other
asserted uses for the documents are irrelevant to analysis of the discretionary
function exception. As the Supreme Court explained in Gaubert, “The focus of
the inquiry is not on the agent’s subjective intent in exercising the discretion
conferred by statute or regulation, but on the nature of the actions taken and

        33The FTCA allows suits against the government “under 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)(1). The SIAA
similarly provides for liability “[i]n a case in which, if a vessel were privately owned or
operated, or if cargo were privately owned or possessed, or if a private person or property
were involved, a civil action in admiralty could be maintained.” 46 U.S.C. § 30903(a).
       34 Moye, O’Brien, O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d

1270, 1274 (11th Cir. 2004) (citing Office of the Capital Collateral Counsel, N. Region of
Florida ex rel. Mordenti v. Department of Justice, 331 F.3d 799, 802 (11th Cir. 2003); MiTek
Holdings, Inc. v. Arce Eng’g Co., Inc., 89 F.3d 1548, 1554 (11th Cir. 1996)).
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                                       No. 14-20435
on whether they are susceptible to policy analysis.” 35 The type of decisions at
issue here are unquestionably within the Coast Guard’s authority and are
susceptible to policy analysis. Because this type of decision falls within the
discretionary function exception, how the Coast Guard actually arrived at the
decision is irrelevant. 36 Thus, although these documents might have been
relevant to the merits at later stages of litigation, they are not relevant at
this stage. We therefore conclude that the district court did not err by
excluding them.
V.     Conclusion

       For the reasons set out above, we AFFIRM.




       35 Gaubert, 499 U.S. at 325. See also Spotts v. United States, 613 F.3d 559, 573 (5th
Cir. 2010) (“Whatever Maldonado’s actual decisionmaking process, it is clear that the
health, safety, financial, and other feasibility concerns implicated by the evacuation
decision render that decision susceptible to policy analysis.”); Demery v. U.S. Dep’t of
Interior, 357 F.3d 830, 833 (8th Cir. 2004) (“The judgment or decision need only be
susceptible to policy analysis, regardless of whether social, economic, or political policy was
ever actually taken into account, for the exception to be triggered.” (citing C.R.S. by D.B.S.
v. United States, 11 F.3d 791, 801 (8th Cir. 1993)).
       36 See 107 Am. Jur. Proof of Facts 3d 241 §§ 23-24 (2009; Supp. Feb. 2015) (collecting

cases upholding the discretionary function exception where the government actor acted
negligently, abused its discretion, or failed to exercise its discretion).
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