                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TOKIO MARINE NICHIDO FIRE                        No. 09-35494
INSURANCE CO. LTD.; FORTIS
CORPORATE INSURANCE SA;                          D.C. No. CV 06-929-JE
WINTERTHUR EUROPE
VERZEKERIGEN NV; AEGON
SCHADEVERZEKERINGEN NV;                          MEMORANDUM *
GENERAL SCHADEVERZEKERING-
MAATSCHAPPIJ NV; GERLING-
KONZERN ALLGEMEINE
VERSICHERUNGS-AG; AVERO
SCHADEVERZEKERING BENELUX
NV; AGF BELGIUM INSURANCE N.V.;
SOMPO JAPAN INSURANCE, INC.,

             Plaintiffs-Appellants,

  v.

UNITED STATES OF AMERICA,

             Defendant-Appellee.



                On Appeal from the United States District Court
                            for the District of Oregon
               Honorable John Jelderks, Magistrate Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                         Argued and Submitted May 3, 2010
                                 Portland, Oregon


Before: KLEINFELD, BEA, and IKUTA, Circuit Judges.




      The discretionary function exception applies to “a federal agency or an

employee of the government.” 28 U.S.C. §2680(a). The discretion was exercised

in this case by the Navy, a federal agency, so we need not resolve whether Crowley

or any of its personnel should or could be treated as employees of the federal

government. There was no evidence that failure to test the fuel oil proximately

caused the soot to be deposited on the Mazdas, so any issue of fact as to the testing

would not be material.




      The district court did not abuse its discretion in deciding what ought to be

done about the delayed production of documents.




      The district court applied the proper standard of review to the Rule 12(b)(1)

motion. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The jurisdictional

and substantive issues are not “so intertwined that the question of jurisdiction is



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dependent on the resolution of factual issues going to the merits.” Augustine v.

United States, 704 F.2d 1074, 1077 (9th Cir. 1983).




      The Navy itself made the decision that the ship, which was on full operating

status and under the command of the Navy subject to the Navy Sealift Command

Standard Operating Manual, should be “maintained in the highest state of readiness

and operation” while in port on a 24-hour-a-day basis. Contract between Crowley

Liner Services and the Maritime Administration § 7.3.12.8. According to the

testimony of the captain of the ship, the captain would require both boilers to be

kept on (absent an emergency) when it was required under Navy policy to maintain

readiness to set sail immediately and without delay. The discretionary function

exception applies to an action undertaken by government mandate, because such

“action will be deemed in furtherance of the policies which led to the promulgation

of the regulation.” United States v. Gaubert, 499 U.S. 315, 323 (1991). The

readiness command was an exercise of a discretionary function grounded in a

political policy addressing military readiness of a military ship. See Sutton v.

Earles, 26 F.3d 903, 907 (1994).




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      Tokio Marine argues based upon the engineer’s testimony at page 88 of his

deposition that the engineer had discretion to shut down a boiler and let it go cold

while in port. The deposition, however, does not support that inference. The

engineer was asked in general about taking a boiler off line to bottom blow, not

whether he was permitted to let a boiler go cold while the ship was in port. The

captain of the ship declared that the ship could not make full power with one of her

steam boilers shut down and “I would not have permitted either of the ship’s two

boilers to be shut down intentionally except in the event of an emergency, that is,

an emergency that would have threatened the ship, her cargo, her crew, and/or her

mission unless the boiler was shut down.” That statement was specifically

addressed by the captain to “the situation and under the circumstances present

while the vessel was in [the port of] Antwerp,” unlike the engineer’s testimony.

The captain’s declaration to this effect was uncontradicted by any other evidence.




      The district court therefore correctly determined that the United States has

not waived its sovereign immunity.




      AFFIRMED.




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