225 F.3d 1201 (11th Cir. 2000)
MID-SOUTH HOLDING COMPANY, INC., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 99-2488.
United States Court of Appeals,Eleventh Circuit.
September 1, 2000.September 14, 2000.

Appeal from the United States District Court for the Middle District of  Florida.(no. 97-00877-CIV-J-10A), Wm. Terrell Hodges, Judge.
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:


1
In this appeal we decide whether the "discretionary function" exception to the  waiver of the United States' sovereign immunity found in the Suits in Admiralty  Act precludes a claim arising out of the allegedly negligent performance of a  search of a vessel by the United States Customs Service and Coast Guard. We hold  that it does.

I. BACKGROUND AND PROCEDURAL HISTORY

2
On or about May 16, 1996, agents of the United States Customs Service and Coast  Guard (collectively, the "Customs Service"1) boarded the "Abner's Choice" (the "vessel"), a commercial fishing vessel operated by Plaintiff- Appellant  Mid-South Holding Company, Inc., ("Mid-South") and docked at the Sister's Creek  Marina in Jacksonville, Florida. Acting on reports that the vessel was involved  in narcotics trafficking, the agents searched the vessel for contraband, but  discovered none. The search of the vessel lasted approximately thirty minutes.


3
On the day following the search, the vessel's lower hold and engine room  flooded, causing it to sink. Mid-South attributes this incident to the  disconnection sometime during the search of an electrical cord that powered the  vessel's bilge pump. Although Charles Abner, the founder and a corporate officer  of Mid-South, was able to refloat the vessel, an electrical outage two weeks  later disabled the vessel's bilge pump, again causing the vessel to flood and  sink. Abner was unable to refloat the vessel a second time, presumably because  of structural damages resulting from the first sinking.


4
After pursuing an unsuccessful administrative claim with the Customs Service to  recover the value of the lost vessel, Mid-South filed a complaint against the  United States in the United States District Court for the Middle District of  Florida. Originally, Mid-South brought its cause of action under the Federal  Tort Claims Act (the "FTCA"), 28 U.S.C.  1346(b), 2671-80, but subsequently  amended its complaint by substituting the Suits in Admiralty Act (the "SAA"), 46  U.S.C.App.  741-52, as the proper basis for the suit. The United States moved  for dismissal or, alternatively, summary judgment on two grounds: (1) the  district court lacked subject matter jurisdiction over the SAA claim because the  United States enjoys sovereign immunity from claims arising from the detention  of goods by agents of the Customs Service; and (2) Mid-South did not have  standing to bring the suit because it did not own the vessel at the time it was  destroyed and therefore was not a "real party in interest."2 The district court  agreed with the former assertion and granted the United States' motion. This  appeal followed.

II. ANALYSIS

5
It is a well-settled axiom that "[t]he United States, as sovereign, is immune  from suit save as it consents to be sued." United States v. Sherwood, 312 U.S.  584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Supreme Court precedent has  expounded that this waiver of immunity "must be unequivocally expressed in  statutory text." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096, 135  L.Ed.2d 486 (1996). The SAA, which provides the sole jurisdictional basis for  admiralty claims against the United States, includes such an explicit waiver:  "In cases where ... if a private person or property were involved, a proceeding  in admiralty could be maintained, any appropriate nonjury proceeding in personam  may be brought against the United States ...." 46 U.S.C.App.  742 (2000); see  also Drake Towing Co. v. Meisner Marine Constr. Co., 765 F.2d 1060, 1063-64  (11th Cir.1985). Although the text of the SAA does not impose any limitations on  this waiver of immunity, courts have recognized that exceptions exist. For  example, every circuit to consider the issue has concluded that the SAA's waiver  of immunity is subject to the "discretionary function" exception identified in  the FTCA, 28 U.S.C.  2680(a). See Tew v. United States, 86 F.3d 1003, 1005  (10th Cir.1996) (listing cases from the First, Second, Third, Fourth, Fifth,  Sixth, Seventh, Ninth, Eleventh, and D.C. Circuits, and joining in their shared  holding). Where applicable, such an exception to this statutory waiver of  immunity abrogates federal subject matter jurisdiction over any pursuant claim.  See Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir.1998) (characterizing  sovereign immunity as an issue of subject matter jurisdiction).


6
Before the district court, the United States argued that another of the FTCA's  exceptions to its waiver of immunity-the "law enforcement" exception, 28 U.S.C.   2680(c)3-should be incorporated judicially into the SAA, and the district  court agreed. Prior to oral argument, however, this court raised the possibility  that the discretionary function exception, as defined in the FTCA, also might  confer immunity on the United States and accordingly ordered supplemental  briefing.4 As alluded to above, this circuit is among the majority holding that  the SAA's waiver of immunity is subject to the discretionary function exception.  See Williams v. United States, 747 F.2d 700, 700 (11th Cir.1984), aff'g and  adopting Williams By and Through Sharpley v. United States, 581 F.Supp. 847  (S.D.Ga.1983). Although the United States did not initially elect to assert this  exception as a basis for immunity, judicial providence counsels us to consider  its applicability to the instant case before reaching the novel question of  whether to incorporate the FTCA's law enforcement exception into the SAA. See  Allen v. Ferguson, 791 F.2d 611, 615 (7th Cir.1986) ("[I]n keeping with the  notions of judicial restraint, federal courts should not reach out to resolve  complex and controversial questions when a decision may be based on a narrower  ground.").5 We review issues concerning subject matter jurisdiction de novo. See  Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir.2000).


7
The FTCA's discretionary function exception preserves the United States'  sovereign immunity against "[a]ny claim ... 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 [United States],  whether or not the discretion involved be abused." 28 U.S.C.  2680(a) (2000).  The Supreme Court has articulated a two-part test for determining whether the  conduct of a government agency or employee falls within the scope of this  exception. First, a reviewing court must ascertain the nature of the challenged  conduct and assess whether it involved an element of judgment or choice. See  United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d  335 (1991). Second, the court decides " 'whether that judgment is of the kind  that the discretionary function exception was designed to shield.' " Id. at  322-23, 111 S.Ct. at 1273 (quoting Berkovitz v. United States, 486 U.S. 531,  536, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988)).


8
The United States asserts, and we agree, that the threshold governmental action  at issue here is the Customs Service's decision to board and search the vessel.  We must therefore examine the statutory and regulatory guidelines governing  these activities and determine whether they mandate a particular manner in which  to execute them. See Hughes v. United States, 110 F.3d 765, 768 (11th Cir.1997).  According to 19 U.S.C.  1581(a):


9
Any officer of the customs may at any time go on board of any vessel or  vehicle at any place in the United States or within the customs waters ... and  examine the manifest and other documents and papers and examine, inspect, and  search the vessel or vehicle and every part thereof and any person, trunk,  package, or cargo on board, and to this end may hail and stop such vessel or  vehicle, and use all necessary force to compel compliance.


10
19 U.S.C.  1581(a) (2000) (emphasis added); see also Boarding & Search of  Vessels, 19 C.F.R.  162.3(a) (1999).6 This broad grant of authority,  particularly as embodied in the emphasized language, leaves the Customs Service  a great deal of discretion, cabined of course by constitutional constraints, in  deciding which vessels to board and search, thus satisfying the first prong of  the Gaubert analysis. See Autery v. United States, 992 F.2d 1523, 1529 (11th  Cir.1993) (observing that an unspecific statutory or regulatory guideline  implies that discretion was intended).


11
"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," Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273 (internal quotation omitted),  we must determine, in applying the second prong of the Gaubert analysis, whether  the challenged conduct of the government agency or employee is "susceptible to  policy analysis," id. at 325, 111 S.Ct. at 1275. We agree with the United States  that the decision to board and search a vessel is the product of the balancing  of various compelling policy considerations. The Customs Service shoulders the  significant burden of cooperating in the enforcement of this country's  antinarcotics laws. See, e.g., National Drug Interdiction Improvement Act of  1986, Pub.L. No. 99-570, tit. III,  3002(5), 100 Stat. 3207, 3273-74 (1986)  (congressional findings recognizing the role of the Customs Service in narcotics  interdiction). This responsibility naturally influences the manner in which the  Customs Service conducts its law enforcement activities.


12
In a case involving the destruction of a vessel following its apprehension by  the Coast Guard on suspicion of narcotics transportation, the Fifth Circuit  observed:


13
To board, search, and seize any vessel suspected of smuggling narcotics is a  sovereign prerogative that has taken on paramount significance in light of the  epidemic encroachment of illegal drugs into our country. Congress has declared  that "trafficking in controlled substances aboard vessels is a serious  international problem and is universally condemned. Moreover, such trafficking  presents a specific threat to the security and societal well-being of the  United States." 46 U.S.C.  1902.... [W]e seriously doubt that Congress  intended to expose the [United States] to liability ... that would not only  inhibit Coast Guard enforcement efforts but would also effectively reallocate  scarce law enforcement resources from drug interdiction ....


14
B&F Trawlers, Inc. v. United States, 841 F.2d 626, 631 (5th Cir.1988). The  considerations cited by the Fifth Circuit apply with equal force here. The  Customs Service, faced with escalating enforcement duties and limited resources,  must decide how best to effectuate our nation's anti-narcotics laws. In so  doing, the Customs Service necessarily exercises discretion in choosing whether  to board and search a vessel, weighing the costs of implementing such activities  against the likelihood of an enforcement success. Cf. Mesa v. United States, 123  F.3d 1435, 1438 (11th Cir.1997) (discussing the law enforcement-related policy  concerns attending the execution of an arrest warrant); Ochran v. United States,  117 F.3d 495, 501 (same, in relation to the protection of federal witnesses).  The discretionary function exception was designed to prevent judicial "second  guessing" of exactly this type of policy-based decision.


15
Of course, the injury Mid-South alleges cannot be attributed directly to the  Custom Service's decision to board and search its vessel. Rather, the act that  purportedly caused the injury would had to have occurred during the operational  execution of that decision. As the Supreme Court made clear in Gaubert, however,  "[d]iscretionary conduct is not confined to the policy or planning level. '[I]t  is the nature of the conduct, rather than the status of the actor, that governs  whether the discretionary function exception applies in a given case.' " 499  U.S. at 325, 111 S.Ct. at 1275 (quoting United States v. S.A. Empresa de Viacao  Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813, 104 S.Ct. 2755, 2764,  81 L.Ed.2d 660 (1984)). Any act, therefore, regardless of the administrative  level at which it is authorized or taken, qualifies as "discretionary" provided  it satisfies the Gaubert analysis. We therefore agree with the United States  that the on-site decisions of the agents of the Customs Service concerning the  manner in which to search the vessel also fall within the scope of the  discretionary function exception. See Varig Airlines, 467 U.S. at 819-20, 104  S.Ct. at 2767-68 (observing that discretionary actions in furtherance of a  policy decision are within the scope of the exception). Because no statute or  corresponding regulation prescribes the methodology for boarding or searching a  vessel,7 field agents are left to their discretion to devise the best course for  executing these functions. In so doing, the agents must balance their  overarching goal of locating contraband with such concerns as efficiency and the  minimization of intrusion on the privacy and property interests of searched  parties. Although the attendant details could be characterized as mundane or as  disengaged from any substantial policy consideration, they are nonetheless  critical to the performance of the discretionary scheme and, accordingly, are  entitled to the protection of the discretionary function exception. Cf. Mesa v.  United States, 837 F.Supp. 1210, 1216 (S.D.Fla.1993), aff'd, 123 F.3d 1435 (11th  Cir.1997) (exhaustively cataloguing the policy-based details attending the  execution of an arrest warrant that the court concluded were within the scope of  the discretionary function exception). As the Fifth Circuit has cautioned:


16
[A]lmost any exercise of governmental discretion could be overly parsed so as  to focus on minute details of sub-decisions to the point that any relationship  to policy would appear too attenuated. But doing that obscures the very  purpose of the discretionary function exception.... [S]uch tunnel-visioned  analyses would render the discretionary function exception nugatory and open  virtually every decision that implements a governmental decision to liability  ....


17
Baldassaro v. United States, 64 F.3d 206, 211-12 (5th Cir.1995).


18
Mid-South contends that although the discretionary function exception may shield  the United States from claims arising out of the decision to search or the  manner in which the search was conducted, it does not foreclose a claim premised  on the discrete act alleged here-the disconnection of the electrical cord  powering the vessel's bilge pump. Essentially, Mid-South argues that the record  does not establish that the agents searching the vessel made an affirmative  decision to disconnect the electrical cord as part of their search, thereby  dissociating the act from the agents' exercise of discretion in pursuit of the  objectives of the search. Mid-South misapprehends, however, the focus of the  Gaubert analysis, which "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 on whether they are susceptible to policy analysis." Gaubert,  499 U.S. at 325, 111 S.Ct. at 1275 (emphasis added). Our inquiry, therefore, is  whether, objectively, disconnecting the electrical cord was conceivably in  furtherance of the search. Because, as the United States hypothesizes, the  disconnection of the cord may have been necessary to gain access to areas of the  vessel the agents desired to search or else to eliminate a potential safety  hazard to the agents, we find that it was. Accordingly, we conclude that the  allegedly negligent act, regardless of its impetus, qualifies as a discretionary  function within the scope of the exception.8

III. CONCLUSION

19
Because we hold that the discretionary function exception to the SAA's waiver of  the United States' sovereign immunity applies in this case, we AFFIRM the  district court's ultimate conclusion that it lacked subject matter jurisdiction  over Mid- South's claim. We therefore need not consider whether that waiver is  also subject to the FTCA's law enforcement exception.



NOTES:


1
 Coast Guard officers are "deemed to be acting as agents of the particular  executive department ... charged with the administration of the particular law."  See 14 U.S.C.  89(b)(1) (2000). Because the Coast Guard was acting at the  direction of the Customs Service in its enforcement of, presumably, the  Controlled Substances Import and Export Act, 21 U.S.C.  951-71, we refer to  the agencies jointly.


2
 Abner purchased the vessel in his name in 1992. After a failed attempt to  transfer title to the vessel to his wife and brother, Abner executed a bill of  sale assigning ownership of the vessel to Mid-South. Abner, however, never filed  the bill of sale. The United States contends that Abner did not adhere to the  requirements for transferring title to a vessel as outlined by Florida law, see  Fla. Stat. ch. 328.01(a), and that, consequently, Mid-South never obtained title  to the vessel. Because we affirm the district court's determination that it  lacked subject matter jurisdiction over this claim, we need not reach the  standing issue.


3
 The law enforcement exception precludes "[a]ny claim arising in respect of ...  the detention of any goods or merchandise by any officer of the customs or  excise or any other law-enforcement officer." 28 U.S.C.  2680(c) (2000). The  Supreme Court has interpreted this exception broadly to include "any claim  'arising out of' the detention of goods ... includ[ing] a claim resulting from  the negligent handling or storage of detained property." Kosak v. United States,  465 U.S. 848, 854, 104 S.Ct. 1519, 1523-24, 79 L.Ed.2d 860 (1984).


4
 Our authority to order supplemental briefing on this issue on appeal derives  from our obligation to inquire sua sponte into issues of subject matter  jurisdiction. See Rembert v. Apfel, 213 F.3d 1331, 1333 (11th Cir.2000).


5
 The issue whether to incorporate the law enforcement exception into the SAA  would be one of first impression in this circuit, and, in light of precedent, a  complex one. In De Bardeleben Marine Corp. v. United States, 451 F.2d 140,  142-43 (5th Cir.1971), a binding precedent, see Bonner v. City of Prichard, 661  F.2d 1206, 1207 (11th Cir.1981) (en banc) (adopting all decisions of the former  Fifth Circuit as binding precedent), the court rejected the United States'  entreaty to incorporate into the SAA another of the FTCA's exceptions for claims  arising out of misrepresentations made by the government, see 28 U.S.C.   2680(h). In so doing, the court intimated in dicta that none of the FTCA's  exceptions could be incorporated into the SAA. See De Bardeleben Marine Corp.,  451 F.2d at 145-46. Nonetheless, since that decision, this circuit has joined  the majority of others in incorporating the FTCA's discretionary function  exception. See Williams, 747 F.2d at 700. The district court that authored the  decision adopted by this circuit in Williams carefully circumvented De  Bardeleben Marine Corp. by predicating its holding on the separation of powers  doctrine, reasoning that "sound principles of judicial restraint in the face of  governmental administrative activity dictate that cases involving discretionary  functions be removed from the jurisdiction of the courts." Williams, 581 F.Supp.  at 852. Courts that have considered the propriety of incorporating the law  enforcement exception, however, have split. Compare B&F Trawlers, Inc. v. United  States, 841 F.2d 626, 628-29 (5th Cir.1988) (declining to incorporate the  exception without mention of the De Bardeleben Marine Corp. decision) with Green  v. United States, 658 F.Supp. 749, 751 (S.D.Fla.1987) (incorporating the  exception, also without mention of the De Bardeleben Marine Corp. decision).


6
 The Coast Guard's law enforcement authority is analogous to that of the Customs  Service:
The Coast Guard may make inquires, examinations, inspections, searches,  seizures, and arrests upon the high seas and waters over which the United States  has jurisdiction, for the prevention, detection, and suppression of violations  of laws of the United States. For such purposes, commissioned, warrant, and  petty officers may at any time go on board of any vessel subject to the  jurisdiction, or to the operation of any law, of the United States, address  inquiries to those on board, examine the ship's documents and papers, and  examine, inspect, and search the vessel and use all necessary force to compel  compliance.
14 U.S.C.  89(a) (2000).


7
 Mid-South suggests the possible existence of such guidelines and requests that,  should we find the discretionary function exception applicable in principle, we  remand the case to allow Mid-South an opportunity to conduct sufficient  discovery. We decline to do so. Even if, as Mid-South conjectures, pertinent  guidelines had required Customs Service agents to exercise due care during their  search, such a general proviso would be insufficient to divest the agents of  their discretion in devising the course by which to conduct the search. Cf.  Irving v. United States, 162 F.3d 154, 163-64 (1st Cir.1998) (en banc)  (reviewing cases involving negligent inspection claims and observing that only  specific guidelines detailing how an agent is to perform his or her inspection  obviate that agent's discretion).


8
 Insofar as Mid-South separately challenges the agents' failure to investigate  the purpose of the electrical cord before disconnecting it or to reconnect the  cord at the conclusion of their search, we find that these constitute nothing  more than purported abuses of the agents' discretion in conducting the search  and therefore, according to the terms of the exception, are also not actionable.  See 28 U.S.C.  2680(a); Dalehite v. United States, 346 U.S. 15, 33-34, 73 S.Ct.  956, 967, 97 L.Ed. 1427 (1953).


