holding that the discretionary function exception applied where the Coast Guard had implied statutory authority to order the evacuation of a sinking ship
How later courts described this case
- holding that the discretionary function exception applied where the Coast Guard had implied statutory authority to order the evacuation of a sinking ship
- holding that the Coast Guard’s forcible evacuation of a sinking sea vessel constituted a seizure of the persons therein
- finding Indian Towing inapposite because the discretionary function exception was not at issue
- "[C]ourts have read the Supreme Court's discretionary function cases as denying protection to actions that are unauthorized because they are unconstitutional, proscribed by statute, or exceed the scope of an official's authority." (citing, inter alia, Nurse)
Written by the judges who cited it.
The opinion
TORRUELLA, Circuit Judge
(dissenting).
In my thirty years as a judge, I cannot recall a case that more squarely falls within the provisions of Fed. R. App. P. 35(a)(2) as meriting en banc review, particularly when one considers the unprecedented nature of the authority conceded to the Coast Guard by the panel opinion and the lack of any authority supportive of its conclusion. The failure to grant en banc review is likely to cause the bar to lose its bearings when it compares the exceptional importance of the issues presented in this appeal with those raised in other cases in which en banc review has been granted by this court. In my view, the full active court *227 should hear and decide this appeal affecting the entire maritime and maritime insurance industries. Given the failure of this court to so act, the matter deserves consideration by the Supreme Court, and petitioners are urged to seek such relief.