IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20435

MARTIN OPERATING PARTNERSHIP, L.P., 

 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 DefendantsAppellees 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.

United States Court of Appeals

Fifth Circuit

FILED

June 11, 2015

Lyle W. Cayce

Clerk

 Case: 14-20435 Document: 00513075288 Page: 1 Date Filed: 06/11/2015
No. 14-20435

2

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 midOctober, 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 

 Case: 14-20435 Document: 00513075288 Page: 2 Date Filed: 06/11/2015
No. 14-20435

3

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.

 Case: 14-20435 Document: 00513075288 Page: 3 Date Filed: 06/11/2015
No. 14-20435

4

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.

 Case: 14-20435 Document: 00513075288 Page: 4 Date Filed: 06/11/2015
No. 14-20435

5

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 

 

2 See 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.

 Case: 14-20435 Document: 00513075288 Page: 5 Date Filed: 06/11/2015
No. 14-20435

6

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 

 Case: 14-20435 Document: 00513075288 Page: 6 Date Filed: 06/11/2015
No. 14-20435

7

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 nonprivileged 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)).

 Case: 14-20435 Document: 00513075288 Page: 7 Date Filed: 06/11/2015
No. 14-20435

8

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.

 Case: 14-20435 Document: 00513075288 Page: 8 Date Filed: 06/11/2015
No. 14-20435

9

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.”).

 Case: 14-20435 Document: 00513075288 Page: 9 Date Filed: 06/11/2015
No. 14-20435

10

“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).

 Case: 14-20435 Document: 00513075288 Page: 10 Date Filed: 06/11/2015
No. 14-20435

11

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”).

 Case: 14-20435 Document: 00513075288 Page: 11 Date Filed: 06/11/2015
No. 14-20435

12

§ 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 nonexclusive 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).

 Case: 14-20435 Document: 00513075288 Page: 12 Date Filed: 06/11/2015
No. 14-20435

13

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.

 Case: 14-20435 Document: 00513075288 Page: 13 Date Filed: 06/11/2015
No. 14-20435

14

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).

 Case: 14-20435 Document: 00513075288 Page: 14 Date Filed: 06/11/2015
No. 14-20435

15

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).

 Case: 14-20435 Document: 00513075288 Page: 15 Date Filed: 06/11/2015
No. 14-20435

16

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).

 Case: 14-20435 Document: 00513075288 Page: 16 Date Filed: 06/11/2015
No. 14-20435

17

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.

 Case: 14-20435 Document: 00513075288 Page: 17 Date Filed: 06/11/2015
No. 14-20435

18

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 

 

33 The 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)).

 Case: 14-20435 Document: 00513075288 Page: 18 Date Filed: 06/11/2015
No. 14-20435

19

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).

 Case: 14-20435 Document: 00513075288 Page: 19 Date Filed: 06/11/2015