                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-3948
RACHID CHAKIR,
                                                        Petitioner,
                               v.

ALBERTO GONZALES, Attorney General
of the United States,
                                                       Respondent.
                        ____________
              Petition for Review of an Order of the
                 Board of Immigration Appeals.
                         No. A97-602-757
                        ____________
 ARGUED SEPTEMBER 26, 2006—DECIDED OCTOBER 19, 2006
                   ____________

 Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
  BAUER, Circuit Judge. Rachid Chakir applied for asylum,
asserting that he has a well-founded fear of persecution in
his native Morocco because of his conversion from Islam to
Christianity. Chakir petitions for review of the Board of
Immigration Appeals (“BIA”) order affirming the denial of
his application for asylum. We affirm the decision of the
BIA and deny Chakir’s petition for review.

                      I. Background
 Chakir is a native and citizen of Morocco and, by birth, a
Muslim. While in Morocco, he developed an interest
2                                               No. 05-3948

in Christianity and began to study the Bible through a
correspondence program. After entering the United States
on a six-month tourist visa on August 22, 1999, Chakir
continued his Bible studies. He was baptized as a Christian
on September 14, 2003.
  Chakir did not leave the United States at the expira-
tion of his visa, however. He applied to the former Immigra-
tion and Naturalization Service (“INS”) for asylum, with-
holding of removal, and protection under the
United Nations Convention Against Torture (“CAT”) on
November 14, 2003. His asylum application asserted that
he fears persecution or death because of his faith should
he return to Morocco. On December 24, 2003, INS initi-
ated removal proceedings against Chakir. At the initial
hearing, Chakir conceded his removability based on his
failure to depart under the terms of his visa and, at a
hearing on May 19, 2004, presented a renewed claim for
political asylum and withholding of removal.
   At the second hearing, Chakir testified that he fears that
if he returns to Morocco, he will be killed or persecuted
because of his Christian faith. He testified that while
he has concerns about the Moroccan government, his
main concern is persecution by individuals and groups
that the Moroccan government is unwilling to control. In
particular, he stated that he fears his friends, his commu-
nity, his neighbors, individuals in Morocco’s government,
Muslim clerics and their followers, and even his family
because of his conversion to Christianity, which, Chakir
testified, his family would consider a dishonor. According to
Chakir, his brothers and sisters, who live in Morocco, and
Morocco itself had become more fundamentalist in their
Islam.
  Chakir offered as witnesses John Prodinger and Richard
Smits, who attended church with Chakir and who testified
that Chakir’s conversion to Christianity was sincere. Chakir
No. 05-3948                                                 3

also offered documentary evidence, including an article
entitled “A Brief Report About the Moroccan Church
(2001).” This article reported that Christians in Morocco
lack freedom to attend churches or to practice their faith
openly. The article also described intimidation tactics used
against Christians, including placing known Christians
under police surveillance, confiscating Christian materials
and turning such materials over to the police, encouraging
the media to rouse public sentiment against Christians,
encouraging Muslim fanatics to persecute Christians and
force them to reconvert to Islam, and subjecting Christians
to police interrogations, threats, physical assaults, and
imprisonment because of their faith.
  The government offered as its evidence two State Depart-
ment reports on Morocco: “Morocco—International Religious
Freedom Report 2003” (“IRFR”) and “Morocco—Country
Reports on Human Rights Practices— 2003.”
  At the conclusion of the hearing, the Immigration Judge
(“IJ”) found Chakir’s conversion to Christianity sincere
and credible but denied Chakir’s petitions for asylum and
withholding of removal. The IJ determined that Chakir’s
conversion to Christianity justified an exception to the one-
year bar for applying for asylum. The IJ disagreed, how-
ever, with Chakir’s opinions regarding the conditions
and practices of Muslims in Morocco and about the likeli-
hood of his mistreatment. The IJ did not consider Chakir to
be the type of person who was courageous enough to martyr
himself for his faith in Morocco or to put himself at risk by
practicing his Christianity so openly as to attract attention.
The IJ compared conditions for Christians in Morocco with
those in Iran, finding that the conditions in Morocco were
very dissimilar from those in Iran, where apostasy is a
capital offense and where courts apply Sharia law. The IJ
also determined that Chakir had failed to identify any
particular individual as his persecutor. Concluding that
Chakir did not have a well-founded fear of persecution, the
4                                               No. 05-3948

IJ denied Chakir’s application for asylum, withholding, and
protection under the CAT but granted Chakir voluntary
departure from the United States.
  Chakir appealed the IJ’s decision denying his asylum
petition to the BIA, which affirmed the ruling. The BIA
determined that the IJ was correct in relying on the IRFR
and reasonable in finding that Chakir did not have a well-
founded fear of persecution. The BIA noted that while
Chakir had not articulated a clear claim that the IJ had
violated his due process rights during the hearing, any such
assertion would fail because the IJ is entitled to examine
witnesses and clarify the testimony on specific allegations.
The BIA found no reversible error based on the IJ’s treat-
ment of Chakir during the hearing and that the IJ had
based the ultimate resolution of Chakir’s petition on
conditions in Morocco rather than on the comparison of
conditions in Morocco and Iran. The BIA upheld the grant
of voluntary departure to Chakir and then dismissed the
appeal. This timely petition for review of the BIA’s order
followed.

                      II. Discussion
  Chakir challenges the denial of his asylum application on
two grounds: (1) the IJ violated Chakir’s due process rights
during the hearing, entitling Chakir to a new hearing; and
(2) Chakir met his burden of establishing a reasonable
possibility of persecution.
  Because the BIA’s opinion supplements the opinion of the
IJ, the IJ’s opinion as supplemented by the BIA’s opinion
becomes the basis for our review. Liu v. Ashcroft, 380 F.3d
307, 311 (7th Cir. 2004). We review the IJ’s denial of
Chakir’s petition under the deferential substantial evidence
standard, which requires us to affirm if the decision is
“supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (citations
No. 05-3948                                                        5

omitted). We will reverse only if we find that the evidence
compels a different result. Brucaj v. Ashcroft, 381 F.3d 602,
606 (7th Cir. 2004).
  We review Chakir’s due process claim de novo, as the
procedural sufficiency of an immigration hearing is a
question of law. See Kerciku v. I.N.S., 314 F.3d 913, 917
(7th Cir. 2003).

    A. Chakir’s Due Process Claim
  Chakir styled his due process claim as a claim brought
pursuant to the Fifth Amendment of the U.S. Constitution,
which entitles aliens to due process of law in deportation
proceedings. This Court has counseled on numerous
occasions, however, that non-constitutional arguments must
precede constitutional contentions. See Rehman v. Gonza-
les, 441 F.3d 506, 508 (7th Cir. 2006) (explaining
that “[n]on-constitutional arguments always come first;
constitutional contentions must be set aside until their
resolution is unavoidable”). See also Djedovic v. Gonzales,
441 F.3d 547, 550 (7th Cir. 2006); Boyanivskyy v. Gonzales,
450 F.3d 286, 292 (7th Cir. 2006). Aliens are afforded the
right to present all relevant evidence at an impartial
hearing by statute, 8 U.S.C. § 1229a(b)(4)(B),1 and regula-
tion, 8 C.F.R. § 1240.1(c).2 Unless Chakir claimed that the
applicable statute and regulation are constitutionally
deficient, which he conceded at oral argument that he

1
   8 U.S.C. § 1229a(b)(4)(B) provides, in part, that in an immigra-
tion hearing, “the alien shall have a reasonable opportunity . . . to
present evidence on the alien’s own behalf, and to cross-examine
witnesses presented by the Government.”
2
  8 C.F.R. § 1240.1(c) states, “The immigration judge shall receive
and consider material and relevant evidence, rule upon objections,
and otherwise regulate the course of the hearing.”
6                                                No. 05-3948

does not, we will not reach the constitutional question.
Rehman, 441 F.3d at 508.
  Reframed as a statutory claim, we consider whether the
IJ denied Chakir the reasonable opportunity to present his
relevant evidence at the asylum hearing. Boyanivskyy, 450
F.3d at 293. To prevail on this claim, Chakir must demon-
strate prejudice such that the IJ’s error affected the out-
come of the proceedings. Rehman, 441 F.3d at 509.
  As a preliminary matter, the government contends that
this Court lacks jurisdiction to consider this claim because
Chakir failed to argue to the BIA that he was denied a
reasonable opportunity to present evidence at the asylum
hearing. Chakir’s brief to the BIA did not articulate such a
claim, as Chakir only raised two arguments addressing the
merits of the IJ’s decision. Generally, an alien is required to
raise and exhaust his remedies before the BIA as to each
claim or ground for relief to preserve his right to judicial
review of that claim. Capric v. Ashcroft, 355 F.3d 1075, 1087
(7th Cir. 2004). The exhaustion of administrative remedies
requirement allows the BIA to resolve procedural failings
that it is capable of addressing. Feto v. Gonzales, 433 F.3d
907, 912 (7th Cir. 2006).
  Although Chakir failed to argue to the BIA that he was
denied a reasonable opportunity to present his relevant
evidence at the asylum hearing, a review of the hearing
transcript compels such an inquiry. The BIA conceded as
much when it noted Chakir’s failure to include a due
process argument but concluded that there was no revers-
ible error based on the IJ’s treatment of Chakir during the
hearing. In evaluating the transcript and in reaching this
conclusion, the BIA considered the merits of a due process
challenge and made a legal determination, which it in-
No. 05-3948                                                     7

cluded in its opinion.3 As a result, there is a final agency
decision with respect to the claim that the IJ violated
Chakir’s statutory and regulatory right to present his
relevant evidence at the asylum hearing. We therefore have
jurisdiction over this claim.
  Turning to the claim itself, we have no doubt that the IJ
overstepped the bounds of a neutral arbiter in his question-
ing of Chakir. Chakir’s contention that he was denied a
reasonable opportunity to present his evidence fails,
however, because he has not shown any prejudice resulting
from the IJ’s conduct during the asylum hearing. As this
court has explained,
    [w]hen a court excludes evidence, counsel must make
    an offer of proof or otherwise alert the tribunal to the
    substance of what the evidence would have been. Fed.
    R. Evid. 103(a)(2). That rule does not apply directly
    to administrative proceedings, but its substance still
    governs—for courts do not set aside agencies’ decisions
    unless mistakes cause prejudice, and how can we
    ascertain prejudice without an offer of proof or some
    substitute?
Rehman, 441 F.3d at 509. Counsel for Chakir made no offer
of proof during the hearing as to additional evidence that he
would have presented, nor does Chakir now explain what
that evidence would have included. In the absence of any

3
  While the BIA framed the issue as a due process claim, the
BIA’s resolution of this claim encompasses both a due process
challenge and the statutory and regulatory challenge that the IJ’s
actions denied Chakir the opportunity to present his evidence at
the asylum hearing. Specifically, the BIA found “no reversible
error based on the Immigration Judge’s treatment of the respon-
dent during the asylum hearing.” BIA Order at n.3. In any event,
the outcome of the our inquiry is the same regardless of whether
we consider this claim on a constitutional or statutory basis.
8                                               No. 05-3948

information as to this missing, material evidence, Chakir
cannot establish that he was prejudiced by the IJ’s actions
during the hearing. As such, his claim that he was denied
the opportunity to present his relevant evidence at the
asylum hearing fails.
  While Chakir’s statutory claim fails, we again must note
the significant number of asylum cases involving “intemper-
ate, impatient, and abrasive immigration judges,” which
should “sound a warning bell to the Department of Justice
that something is amiss.” Giday v. Gonzales, 434 F.3d 543
at 550 (7th Cir. 2006) (citing Diallo v. Ashcroft, 381 F.3d
687, 701 (7th Cir. 2004); Hasanaj v. Ashcroft, 385 F.3d 780,
783 (7th Cir. 2004); Kerciku, 314 F.3d at 918; Podio v.
I.N.S., 153 F.3d 506, 510 (7th Cir. 1998)).
  During the course of the asylum hearing, the IJ asked
Chakir questions after Chakir’s direct examination and
again after his cross-examination. The IJ then asked
counsel for Chakir and counsel for the government ques-
tions during their closing arguments. When Chakir’s
attorney objected to various questions posed by the IJ to
Chakir, the IJ overruled or otherwise failed to rule on the
objections. The IJ also refused to allow Chakir’s attorney to
ask follow-up questions after the IJ questioned Chakir
extensively following the government’s cross-examination.
All told, the IJ asked Chakir approximately 128 questions.
Chakir’s attorney, by contrast, asked Chakir 47 questions.
The government’s attorney asked Chakir a mere 11 ques-
tions.
  The IJ also interrogated Chakir regarding matters beyond
Chakir’s knowledge, including Moroccan and Iranian law,
and then accused Chakir of mis-characterizing the law. The
IJ asked Chakir questions about his family, the substance
of which Chakir had addressed during his direct examina-
tion. The IJ then aggressively interrogated Chakir on
Moroccan civics, asking Chakir questions about the role of
No. 05-3948                                                9

Islamic law in Morocco; the effect of the French legal system
on the Moroccan legal system; the Moroccan legislature; the
role of the former king of Morocco; Moroccan elections; the
Party of Justice; an Algerian political party and the civil
war in Algeria; the present ruler of Morocco, Mohammed
VI; and the Moroccan court system and the role of Islamic
law.
  We are mindful of an immigration judge’s responsibility
to establish the record as well as serve as fact-finder
and adjudicator. Hasanaj, 385 F.3d at 783. And we do not
want to discourage immigration judges from asking ques-
tions of witnesses in order to establish the record; rather,
we expect immigration judges, like any judge, to question
witnesses and conduct asylum hearings with the “patience
and decorum befitting a person privileged with this posi-
tion,” Giday, 434 F.3d at 550 (quoting Diallo, 381 F.3d at
701). We expect this IJ to act accordingly in all future
proceedings.

  B. Persecution
  In denying Chakir’s application for asylum, the IJ
believed that Chakir’s conversion to Christianity was
sincere but determined that Chakir does not have a well-
founded fear of future persecution. To establish this claim,
Chakir had the burden of proving that he either has
endured past persecution or has a well-founded fear of
future persecution based on one of the statutorily protected
categories. See 8 U.S.C. § 1101(a)(42)(A); Giday, 434 F.3d at
553. In the context of asylum proceedings, “persecution”
generally concerns punishment or substantial harm.
Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir. 2006).
“Persecution does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or
unconstitutional.” Id. (quoting Firmansjah v. Gonzales, 424
F.3d 598 at 605 (7th Cir. 2005)). Chakir does not assert that
10                                               No. 05-3948

he was subjected to past persecution but argues that he
established a genuine fear of future persecution because of
his religion if he returns to Morocco.
  An asylum applicant can establish a well-founded fear
of future persecution if the fear is “subjectively genuine and
objectively reasonable in light of the credible evidence.”
Diallo, 381 F.3d at 696 (quoting Capric, 355 F.3d at 1084-
85). In reviewing the denial of an asylum claim,
“[c]redibility determinations, findings of past persecution,
and findings of a well-founded fear of future persecution are
all factual determinations owed our strong deference.” Id.
at 698 (citing Medhin v. Ashcroft, 350 F.3d 685, 688-89 (7th
Cir. 2003)). We assess “whether the BIA’s determination
was supported by reasonable, substantial, and probative
evidence on the record considered as a whole, and reverse
only if the evidence compels a contrary conclusion.”
Youkhana v. Gonzales, 460 F.3d 927 at 931 (7th Cir. 2006)
(quoting Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 671
(7th Cir. 2005)). The evidence does not compel a contrary
conclusion in the instant matter.
  In finding that Chakir had not proven that he has a well-
founded fear of future persecution, the IJ credited the State
Department’s IRFR on Morocco. The IRFR reported that the
Moroccan constitution establishes Islam as the state
religion but also provides for freedom of religion and the
right of non-Muslim communities to practice their
faith openly. The report acknowledged that converts to
Christianity generally face social ostracism. According to
Chakir, the social ostracism faced by Moroccan Christians
includes being terminated by their employers and having
family, friends, and neighbors deny them food, beat and
abuse them, ridicule them, denounce them to authorities,
and force them to perform Islamic practices. The IRFR also
reported that the Moroccan government places certain
restrictions on Christian religious materials. While Chakir
offered evidence about Islamic law generally, e.g., under
No. 05-3948                                               11

Islamic law, Muslims who convert to Christianity are
deemed apostates and the penalty for apostasy is death,
Chakir did not establish that Moroccan courts follow this
law. The IRFR and Chakir’s testimony established that
the Moroccan legal system is not based on Sharia law.
The IRFR further reported that the Moroccan government
encourages tolerance and has criminalized attempts to
prevent individuals from practicing their religious beliefs.
The acts of private citizens do not constitute persecution
unless the government is complicit in those acts or is unable
or unwilling to take steps to prevent them. E.g., Pramatarov
v. Gonzales, 454 F.3d 764, 766 (7th Cir. 2006). The IJ’s
conclusion that the Moroccan government has not endorsed
the more serious manifestations of private reactions to
conversion, and is willing to protect a convert if alerted to
something like a beating, is supported by substantial
evidence.

                     III. Conclusion
  For the foregoing reasons, we AFFIRM the order of the BIA
and deny Chakir’s petition for review.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—10-19-06


                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 01 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   14-30109

              Plaintiff-Appellant,               D.C. No. 4:14-cr-00012-BMM

 v.
                                                 MEMORANDUM*
WILLIAM TAYLER KIRKALDIE,

              Defendant-Appellee.

                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and CHRISTEN, Circuit Judges.

      The government appeals from the district court’s order granting William

Tayler Kirkaldie’s motion to dismiss his indictment for domestic abuse by a

habitual offender under 18 U.S.C. § 117(a). We have jurisdiction under 28 U.S.C.

§ 1291, and we reverse and remand for further proceedings.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The district court dismissed the indictment on the ground that the

government could not use Kirkaldie’s uncounseled tribal court convictions to

prove an element of the offense. After the district court’s decision, the Supreme

Court decided that the use of uncounseled tribal court convictions is permissible in

a prosecution under section 117. See United States v. Bryant, 136 S. Ct. 1954,

1966 (2016). We agree with the parties that remand is required under Bryant.

Accordingly, we reverse the district court’s order dismissing Kirkaldie’s

indictment and remand for further proceedings.

      REVERSED and REMANDED.

                                          2                                 14-30109


285 Pa. Superior Ct. 559 (1981)
428 A.2d 186
James G. SNYDER, a minor, by Margaret J. Snyder, guardian, Appellant,
v.
MILTON AUTO PARTS, INC.
Superior Court of Pennsylvania.
Argued March 3, 1980.
Filed April 3, 1981.
Frank E. Garrigan, Shamokin, for appellant.
Mary Jane Forbes, Harrisburg, for appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
*560 WATKINS, Judge:
This is an appeal from the order of the Court of Common Pleas of Union County denying the plaintiff's motion to take off a compulsory non-suit.
On February 29, 1976, James G. Snyder, was a 9 year old boy, who was working at a Flea Market located along Route 15, Kelly Township, Union County, Pennsylvania. Adjacent to the Flea Market across a small rural road was the defendant's place of business known as Milton Auto Parts, Inc., engaged in the business of scrapping used automobiles and salvaging the parts. The business occupied approximately nine acres and is enclosed by a fence. Inside the fence were maintained several large watchdogs.
On February 29, 1976, the minor James Snyder had just completed assisting a patron of the Flea Market in loading his purchase into the trunk of his car and was returning from the parking area to the flea market when he heard something following him. When he turned, a large brown dog, being one of the dogs from the Milton enclosure, lunged at him and grabbed him by the throat. The boy was knocked to the ground resulting in physical damage to his neck, hand and armpit.
The dog was chased away by the owner of the flea market and the boy taken to the hospital where he spent three days.
The court below held that the evidence was insufficient to establish defendant's prior knowledge of the dog's vicious propensities and entered a compulsory non-suit. Timely motion was made to have the non-suit taken off and was denied by the court below. This appeal followed.
The law of Pennsylvania placed the burden of proof of prior knowledge by the owner of a domestic animal's vicious propensity upon the plaintiff. "[t]he owner of a dog is not responsible for the consequences of the dog's bite if he has no reason to know the viciousness or dangerous propensities of the dog beforehand." (Cases cited) Freeman v. Terzya, et al., 229 Pa.Super. 254, 323 A.2d 186 (1974); Clark v. Clark, 207 Pa.Super. 193, 215 A.2d 293 (1965).
*561 The question to be decided is whether or not the injured boy has produced any evidence from which a jury could conceivably find that the owner of the dog which attacked the minor, had prior knowledge of its dangerous propensities? We find the court erred in entering the non-suit.
"[i]n passing upon the propriety of the entry of a compulsory non suit, we accept the evidence as presented by the appellant as true; we read it in the light most favorable to him and we accord him the benefit of all reasonable inferences arising therefrom (citing cases). In any event the facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. (Citing cases)." Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). See also, Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977).
Evidence was presented by the plaintiff as follows: A witness testified to the dog lunging at him with teeth bared while he was being restrained by a rope by an officer of the defendant and was told not to put his hand down as "he (the dog) is trained";
The minor testified that the dog lunged at his throat biting him in the throat in the manner of a trained attack dog;
Signs were placed all about the premises reading "Beware of Dogs";
The dogs, including the dog in question, were seen on occasions prior to the attack, jumping on the restraining fence and trying to get out at anyone who came around;
This dog along with other dogs had escaped from the grounds on prior occasions and had to be driven off on at least three occasions and once the owner was called to come and get his dogs;
And the dogs were locked up during the day and let out a night. An inference might be made that the owner should have realized that such confinement may well create dangerous propensities.
*562 Discussing the test, Proof of Facts 2nd, in Volume 13, at Page 473, by Stephen R. Pitcher, J.D. sets forth circumstances that constitute knowledge of a dog's viciousness or dangerous propensities:
Sec. 14. Complaints brought to owner's attention.
Sec. 15. Fighting with other dogs.
Sec. 16. Frequent confinement of dog.
Sec. 18. Warning sign on owner's premises.
Sec. 19. Statements by owner as to dog's character.
The dogs were used for the purpose of preventing trespassers and theft when the establishment was closed. They were kept under restraint so that they would not "get too friendly".
Taking all the above-discussed circumstances together as true, the finder of fact could well infer that the dogs were capable of causing harm and that the owner knew this fact.
"As to the knowledge which the owner must possess in order to charge him with liability the authorities are generally agreed that a dog is not entitled to `one bite' and that actual notice of the viciousness or mischievous propensities of the animal are not necessary. It is sufficient if he knew or should have known that the animal was a probable cause of harm." See Proof of Facts 2nd, supra.
In Pennsylvania Legal Encyclopedia, Volume 2 Animals, Section 24 at page 113-114, it sets forth:
"A dog's vicious propensities may be brought to the owner's notice by acts of agression on the part of the dog. These acts of agression need not be precisely similar to act or acts on which the action is founded. Although a single instance of the vicious conduct on the part of the dog is sufficient to effect the owner with notice of the dog's vicious propensities, it is not the rule in this state that a dog is entitled to one `free' bite, before it becomes a source of liability to its owner.
"Although the mere fear of a dog does not prove that the dog that excites the fear is vicious, where it is shown that on previous occasions the dog had rushed at other persons *563 in a vicious manner, and that his keeper had been obliged to call him off, or that the dog had chased a witness for the plaintiff and had been beaten off by stones, and was always growling at passersby, the viciousness of the dog is sufficiently established."
In the instant case, there was testimony that the dog in question, was large and would jump up on people in a "friendly" manner. In Groner v. Hendrick, 403 Pa. 148, 169 A.2d 302 (1961) the Supreme Court held, 463 Pa. at 303, 169 A.2d 302:
"A large, strong, and overly friendly dog may be as dangerous as a vicious one, and one recital of the dog's behaviour at home is enough to bring knowledge to his owners' when considered together with its size and their apparent knowledge that it might jump up on people".
The plaintiff presented sufficient evidence of prior knowledge on the part of the defendant as to the possible dangerous propensities of its dogs to present a question for the jury.
The order of the court below is reversed; the compulsory non-suit removed and a new trial granted.


709 F.2d 1494
P. Liedtka Trucking, Inc.v.James H. Hartman and Son, Inc.
82-1090, 82-1091
UNITED STATES COURT OF APPEALS Third Circuit
3/14/83

E.D.Pa., Weiner, J.

AFFIRMED


903 F.2d 312
59 USLW 2055
In re RAMU CORPORATION, Petitioner.UNITED STATES of America, Petitioner,v.6600 NORTH MESA, EL PASO, TEXAS, Respondent.In re Ivonne DELGADO DE MUNOZ, Luis Delgado Avalos, BeatrizVarela Delgado, and Rafael Munoz Telles, Petitioners.UNITED STATES of America, Petitioner,v.REAL PROPERTY WITH RESIDENCE LOCATED AT 1070 GARDNER ROAD,EL PASO, TEXAS, With all its Furnishings and Appurtenancesand Improvements Thereon and Real Property with ResidenceLocated at 6636 Gato Road, El Paso, Texas, with all itsFurnishings and Appurtenances and Improvements Thereon, Respondents.
Nos. 90-8151, 90-8152.
United States Court of Appeals,Fifth Circuit.
May 29, 1990.

Bernard J. Panetta, II, Mary Stillinger, Caballero, Panetta, Ortega, El Paso, Tex., for Ramu Corp.
Sara Criscitelli, U.S. Dept. of Justice, Appellate Section, Washington, D.C., Steve Jurecky, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., El Paso, Tex., for respondents.
Appeal from the United States District Court for the Western District of Texas.
On Petitions For Writ of Mandamus
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:

1
The petitioners for mandamus, various individuals and a corporation, are claimants of certain real property in El Paso, Texas that is the subject of two civil forfeiture actions.  They request that we lift a comprehensive and potentially lengthy stay of all proceedings in the cases.  The seized properties are the residences of some of the petitioners and a shopping center.  None of the claimants is under indictment, nor is any of them alleged to have engaged in illegal activities;  yet they have been effectively dispossessed of their homes and denied the use of their business without a hearing.  Their property has been seized on the grounds that an individual, to whom some of them are related, enabled them to purchase the properties through his extensive narcotics trafficking.  Yet he has not been indicted either.  The government contends, however, that a stay in these two cases is necessary pending the outcome of a drug conspiracy case in California, in which, we reiterate, neither the claimants nor the alleged drug trafficker is named.  Because we are convinced that the government has not satisfied the statutory requirements for this all inclusive stay, we grant in part the claimants' petitions and direct the district court to reconsider the stay and to consider claimants' pending motion to dismiss the forfeiture complaint against the residences.

2
* Although the facts underlying both actions are similar, the cases arrive in different procedural postures.  Because there is no evidentiary record or findings of fact, our analysis depends entirely upon the pleadings, so we review the procedural history of both cases in some detail.

3
* On October 16, 1989 the United States filed a verified complaint in the Western District of Texas, seeking the forfeiture of two adjacent parcels of real property in El Paso (the "residences case").  A "verified complaint" commences an in rem action under the Supplemental Rules for Certain Admiralty and Maritime Claims.  See Rule C(2).  Although these were civil actions, the forfeiture statute under which they were brought required that they proceed under the Supplemental Rules, rather than the Federal Rules of Civil Procedure.  See 21 U.S.C. Sec. 881(b) (West 1990).  The complaint alleged that the properties, two residences, outbuildings and surrounding land, constituted proceeds traceable to sales of illegal drugs, and thus were forfeitable under 21 U.S.C. Sec. 881(a)(6).1   One parcel of land, 1070 Gardner Road, consisted of eight lots, including one house with outbuildings.  The warranty deed, attached to the complaint, identifies four owners of the lots:  Luis Delgado Avalos and Beatriz Varela Delgado (four lots), whose address is given in Juarez, Mexico;  Rafael Munoz Telles (three lots), whose address is given in El Paso;  and Ivonne Delgado de Munoz (one lot), whose address is also in El Paso.  The other parcel, a house at 6636 Gato Road, is owned by Rafael Munoz Telles.  The two properties are alleged to be worth over $500,000;  neither has any liens or mortgages recorded against them.

4
The complaint averred that agents of the Drug Enforcement Administration believed that the properties were purchased with proceeds from drug transactions because a relative of the property owners is allegedly a major drug trafficker.  The complaint described the arrest and indictment in California of a James McTague, on charges of conspiracy to import nineteen tons of cocaine that was found in a warehouse in Sylmar, California.  It recounted that, when arrested, McTague gave statements implicating himself and others in the conspiracy.  Among those implicated was one Rafael Munoz Talavera who, according to a DEA agent, is "of record" with the DEA, and who, according to McTague, was "in charge of all transportation" of the cocaine.

5
Rafael Munoz Talavera is the husband of Ivonne Delgado de Munoz and the son of Rafael Munoz Telles.  The complaint states:

6
James McTague also told DEA Special Agent Jim Capra that Rafael Munoz had been the person in charge of the transportation from Mexico of all the cocaine (which he related included a total of about 60 tons during the past year), that had gone through the warehouse in Sylmar, California.  McTague also told Special Agent Capra that the money for the cocaine had traveled back the same route through Rafael Munoz to Munoz' Colombian connection.  During approximately a year period, Rafael Munoz Telles (the father of Rafael Munoz), bought the Respondent property as follows:  Lot 2 on November 2, 1987 for $64,520.00, Lots 3, 4, 6 and 7 on November 25, 1987 for $179,550.00, Lot 9 on April 12, 1988 for $35,000.00, Lot 8 on May 5, 1988 for $35,000.00, Lot 1 on August 24, 1988 for $100,000.00 and Lots 8B on August 29, 1988 for $120,195.19.  He paid Lawyers Title of El Paso with a cashier's check for each purchase.  The lots were placed in various names (nominees), but the lots are all included in the same compound area as the house on Lot 2, which is where Rafael Munoz, Ivonne Delgado De Munoz (his wife), and his children live.

7
Attached to the complaint was a declaration by Darrell Spain, a DEA Special Agent, which stated:  "I have read the contents of the foregoing complaint for forfeiture, and the statements contained therein are true to the best of my knowledge and belief."2   The only other evidence were the deeds for the subject property.

8
Simultaneously with the filing of the complaint, the government moved for permission to have the U.S. Marshal seize the property.  The next day the court granted the government's motion ex parte, and the following day issued a warrant for the property's arrest.3

9
A month later, on November 16, the government filed another verified complaint alleging the same relationship between Rafael Munoz Talavera and the California cocaine conspiracy, but in this case the defendant was an El Paso shopping center, owned by a corporation which the government alleged was used to disguise proceeds from drug transactions.  The shopping center is worth approximately $4 million, and has a lien against it for a note held by an insurance company for approximately $3.2 million.  This complaint states:

10
The Respondent [property] was purchased from proceeds from the distribution of illegal drugs in violation of 21 U.S.C. Sec. 841.  Rafael Munoz knew that the transaction was designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity described above, for the following reasons:Rafael Munoz Talavera negotiated the purchase of the respondent from on or about May 1, 1989 (when he signed the Earnest Money Contract) through May 9, 1989, when he selected his father, Rafael Munoz Tellez, to be the president, and Juan Uribe to be vice-president and registered agent of the RAMU Corporation to conceal the identity of the true owner, Rafael Munoz Talavera, and he then, in fact, purchased the Respondent by bringing a cashier's check in the amount of $1,214,550.06 on Banco Del Atlantico's account at Texas Commerce Bank payable to Lawyers Title to close the transaction on May 9, 1989.

11
Rafael Munoz Talavera has continued to act as the owner through November.

12
Attached to this complaint was a declaration by an IRS Special Agent assigned to the case, identical to that of DEA agent Spain in the first case, averring that the statements in the complaint were true.

13
On November 20, the claimants, record titleholders of the residential property, filed their notice of claim.  They stated that the property had not been obtained with the proceeds from drug transactions and that they were innocent, good faith owners.  The same day the claimants also filed two notices of deposition.  In the first they sought to depose three DEA agents, including the agent who had stated that Munoz Talavera was "of record" with the DEA and the agent who verified the complaint, and the Deputy U.S. Marshal.  They requested subpoenas duces tecum for records connecting the claimants or Rafael Munoz Talavera with illicit activities or the proceeds therefrom.  The deposition was to be held in an El Paso court reporter's office.  The second notice sought to depose the claimants themselves at the office of an attorney in Juarez, Mexico.4   Meanwhile, on November 27 the court issued a warrant for the arrest of the shopping center and the property was seized by the Marshal.5

14
On November 28, 1989, the government moved for a stay in the residences case, "until the disposition of the related criminal case now pending in the Central District of California," or a protective order, under Rule 26(c)(1) of the Fed.R.Civ.P., until the disposition of the related criminal investigation.  The motion stated:

15
The factual basis supporting the criminal prosecution and the factual basis supporting the Government's civil complaint in the instant cause stem from the same transactions.  It is Petitioner's position that public disclosure of information related to the criminal cause would circumvent the rules of criminal procedure and could compromise the related pending criminal action.

16
In an accompanying memorandum of law, the government argued that the claimants were attempting to avoid the discovery limits facing criminal defendants through use of the more liberal discovery available in the civil forfeiture proceedings.6   The government also moved for a protective order to prevent the taking of any depositions outside El Paso, particularly in Mexico.

17
On December 7 the claimants filed an opposition to the government's motion for a stay or protective order, and a motion to dismiss.  The claimants argued that a stay was inappropriate because it indefinitely deprived them of the use of their property without any of them, or even Munoz Talavera, having been indicted, and denied them any opportunity to recover their property.  They contended that if they were barred from discovering the evidence connecting their property with illegal activity, they would have no means of contesting the seizures.  Their motion to dismiss was brought under both Rule 12(b)(6) of the Fed.R.Civ.P. and Rule E(2)(a) of the Supplemental Rules for Certain Admiralty and Maritime Claims.  It contended that the complaint failed to state a claim upon which relief could be granted, because it did not satisfy the particularity requirements for pleading under the Supplemental Rules.7

18
On December 11, 1989 the district court granted all of the government's motions.  It stayed proceedings in the residences case "pending the resolution of criminal case CR-89-874-TJH in the Central District of California."8   It also ordered that all depositions in the case be taken in El Paso, and that no depositions be taken "until after resolution of Petitioner's Motion for Stay of Proceedings."9   The district court did not rule on claimants' motion to dismiss, which remains pending.

19
The claimant Ramu Corporation filed its notice of claim with respect to the shopping center on December 22.  As in the other case, it sought to depose government agents, here the IRS special agent whose declaration accompanied the pleading, concerning any information she had that would connect the claimant, or Rafael Munoz Talavera or the property with the proceeds of illegal activity.  It also sought to depose Rafael Munoz Telles, its president, for its own benefit.  As in the other case, the government moved for a stay or a protective order.  On January 10, 1990, the court entered a stay and a protective order in the shopping center case identical to those it had entered in the residences case.  On March 15, 1990, the claimants filed petitions for mandamus in both cases, requesting that the district court be ordered to lift the stays and the protective orders, and to hold a hearing on the motions for stays and protective orders.

B

20
Because of the novel and important issues this case presents, we requested a response from the government to the claimants' petitions for mandamus.  Specifically, we asked the government to address the need for seizure rather than some less drastic means to protect its interest in the properties.  After the government's response, and a reply by petitioners, we requested oral argument on the matter.  Following able argument, and our thorough consideration of the matter, we now grant in part the petitions for mandamus for the reasons set forth below.

II

21
We start with the observation, now almost trite but nevertheless a fundamental premise, that mandamus is an extraordinary remedy, not to be granted lightly.  Ex Parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947);  Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976).  It "is awarded, not as a matter of right, but in the exercise of sound judicial discretion."    Southern Pacific Transp. Co. v. San Antonio, Tex., 748 F.2d 266, 270 (5th Cir.1984) (citing Duncan Townsite Co. v. Lane, 245 U.S. 308, 311, 38 S.Ct. 99, 101, 62 L.Ed. 309 (1917)).  Because it interposes an appellate court in a matter pending before a lower court, that is presumed to be more familiar with the circumstances of the case, a petitioner's right to the writ must be "clear and indisputable."    Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.    Although it may obviate the need for improper or unwarranted proceedings, it cannot be used as a substitute for appeal, even when hardship may result from delay or an unnecessary trial.  Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964).

22
Mandamus has "traditionally been used in federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so."    Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967).  It is "available only where there is a clear and indisputable abuse of discretion or usurpation of judicial power by the trial court."    In re Cajun Elec. Power Co-op, Inc., 791 F.2d 353, 365 (5th Cir.1986) (citing Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34-36, 101 S.Ct. 188, 189-91, 66 L.Ed.2d 193 (1980)).

23
The circumstances under which these petitioners seek mandamus, however, are somewhat less foreboding than the usual case.  Because the district court has made no findings and held no hearing, it can lay claim to no greater familiarity with the matter than can be gleaned from the pleadings.10   These are all before us.  Because the action of the district court that petitioners challenge is a stay, potentially of lengthy duration, there is no interruption with ongoing proceedings below.  Moreover, the statute that the government contends authorized the stay has received virtually no judicial construction.  The statute's terms demand that certain elements be found before a stay may be granted, yet the court below, in its one sentence grant of the government's motion, made no written findings that these elements existed.

24
Finally, the consequence of the district court's action is more than simply delay or cost.  It is the deprivation of the petitioners' use of their property, including their residence, for what may be a very long time, without their having had an opportunity to know the evidence against them, challenge it or even have a hearing.  These petitioners have not been indicted, nor are they even alleged to have engaged in illegal activities.  At most, they are related to someone who is alleged to have engaged in illegal activities, yet he himself is unindicted.  Under these circumstances, we conclude that this matter is one of those extraordinary cases in which mandamus may be considered.  We next examine whether the petitioners have shown that their right to the writ is "clear and indisputable."

III

25
The stay of a pending matter is ordinarily within the trial court's wide discretion to control the course of litigation, which includes authority to control the scope and pace of discovery.  Matter of Evangeline Refining Co., 890 F.2d 1312, 1320 (5th Cir.1989);  Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir.1979).  This authority has been held to provide the court the "general discretionary power to stay proceedings before it in control of its docket and in the interests of justice."    McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir.1982).  Even discretionary stays, however, will be reversed when they are "immoderate or of an indefinite duration."    McKnight, id.

26
In this case, moreover, the inherent discretion of the trial court to control the course of litigation has been explicitly circumscribed by statute.  21 U.S.C. Sec. 881(i) provides:

27
(i) Stay of civil forfeiture proceedings

28
The filing of an indictment or information alleging a violation of this subchapter or subchapter II of this chapter, or a violation of State or local law that could have been charged under this chapter, which is also related to a civil forfeiture proceeding under this section shall, upon motion of the United States and for good cause shown, stay the civil forfeiture proceeding.

29
(Emphasis supplied).  The district court did not refer to this statute in its orders, and the government never referred to this statute in its pleadings or motions in the district court.  Thus, there is no indication in the record that the statute was even considered.  The plain language of the statute requires that two elements be found in order to grant the stay:  (1) that forfeiture proceedings be "related to" a drug offense for which there has been an indictment, and (2) that the government show "good cause" for the stay.  Given the absence of conclusive record evidence demonstrating that either of these elements was satisfied, we have no choice but to direct the district court to consider whether a stay is appropriate in this case under 21 U.S.C. Sec. 881(i).

30
Given the very serious interests of both parties in such situations, before granting a stay under 21 U.S.C. Sec. 881(i) a district court must make express findings of fact and conclusions of law concerning the existence of the statutory prerequisites for a stay.  As we have noted, the district court entered only a one sentence order, and we must therefore direct it to issue fully articulated and explicit findings upon which it could base a stay.  In so doing, the court is of course free to reconsider not only the propriety of a stay but also the appropriateness of any alternative limitations on the stay.  Since the district court has not addressed the statute, we are reluctant to draw any conclusions concerning its application in this case without an evidentiary record and more extensive hearings.  Some general observations concerning the statutory prerequisites, however, are in order.

31
* First, before a stay may be entered the forfeiture proceeding must be one "related to" an indictment alleging drug violations.  "Related to" is neither a term of art nor statutorily defined, so whether a forfeiture proceeding is related to a criminal indictment demands a common-sense, fact-bound analysis.  It is clear that civil and criminal cases need not be perfectly "parallel" in order to be related, i.e., they need not involve identical parties, transactions and issues.  See United States v. Banco Cafetero Intern., 107 F.R.D. 361, 365 (S.D.N.Y.1985) (although cases cannot be related where "parties, issues, and relevant facts and transaction are different ...[,] identity of issues and parties between criminal and civil case may not be necessary"), aff'd, 797 F.2d 1154, 1163 (2d Cir.1986) (granting stay but noting that "we do not agree ... that, once an action is filed, delays of any length may be allowed to allow completion of related criminal proceedings");  United States v. Parcel of Property, 4808 S. Winchester, 1988 WL 107346, 1988 U.S. Dist. LEXIS (N.D.Ill.1988) (cases involving same issues and transactions but not entirely identical parties held "related").

32
Without commenting on the ultimate merits of whether the civil and criminal proceedings are related, with respect to the residences case (90-8152) we feel constrained to say that, on the record before us, we frankly do not see how the district court could have meaningfully considered whether the statute applies because the allegations of the complaint, the only basis for granting the stay, are so vague.  At most, it avers that an alleged drug trafficker is the husband and father of the claimants, and the claimants purchased real property with cashier's checks.  Perhaps supplemental affidavits or testimony could describe with greater particularity the relation between the civil action and the criminal case.  We leave that to the district court on remand.

33
With respect to the shopping center case (90-8151), the basis upon which the district court granted the stay, although still inadequately identified, is somewhat stronger.  The verified complaint at least alleges, as evidence of "relatedness" between the civil and criminal cases, that the funds for the purchase of the respondent property came directly from the alleged drug trafficker.  Nevertheless, the district court granted the stay ex parte, allowing no opportunity for the claimants to rebut the alleged relationship between the cases with specific facts concerning the purchaser's identity or the source of the funds.  Moreover, as we have noted, relation between the cases is only one of the two statutory prerequisites for granting a stay.

B

34
With respect to the second requisite, the government must also demonstrate "good cause" in order to obtain a stay.  Since any relationship between criminal and civil cases raises the prospect of civil discovery abuse that can prejudice the criminal case, good cause requires more than the mere possibility of prejudice.  Banco Cafetero, 107 F.R.D. at 366 (allegations of prejudice to criminal case from civil discovery are "conclusory and insufficient to warrant a stay of the civil forfeiture actions");  United States v. One Parcel of Real Estate at 1303 Whitehead St., 729 F.Supp. 98, 99 (S.D.Fla.1990) (same);  United States v. One Parcel of Real Estate Located at 12525 Palm Road, 731 F.Supp. 1057 (S.D.Fla.1990) (same).  A determination of good cause, and the resulting grant of a stay, can deprive claimants of property without a hearing for a long time.  This is an extremely harsh consequence, which has been analogized to the consequences of granting a preliminary injunction.  U.S. v. One Parcel of Real Estate at 1303 Whitehead St., 729 F.Supp. 98, 100 (S.D.Fla.1990) (requires Government to show substantial likelihood it will prevail on the merits, substantial threat of irreparable injury if stay is denied, that threatened injury to government outweighs threatened injury to claimant from stay, and that granting stay will not disserve public interest);  12525 Palm Road, supra (same).  The government should at least be required to make a specific showing of the harm it will suffer without a stay and why other methods of protecting its interests are insufficient.  Any determination of "good cause" that warrants a stay simply must be accompanied by specific findings of fact and determinations that the government will suffer specific forms of prejudice.

35
The district court is not limited to a simple choice of either granting an all-inclusive stay or denying the government all relief.  As in the grant of a preliminary injunction, there must be some weighing of the equities involved, and some consideration of alternative means besides seizure, such as bonds or a lis pendens, of protecting the government's interests.  12525 Palm Road (ordering in camera inspection of materials sought in discovery).  A determination of "good cause" is thus a mixed question of law and equity, requiring consideration of any mitigating circumstances that affect the appropriateness of a stay.  Certainly, when the consequence of a stay is to preclude persons displaced from their homes from attempting to regain access to their property, the district court must consider means of ameliorating the stay's severe effects.

36
If the effective weighing of equities is often difficult without a hearing, it is certainly impossible without permitting a response to the contentions of one party.  As we have noted, the district court granted this stay ex parte.    In our view, a district court best exercises its considerable discretion in such cases by not granting stays ex parte unless the particular factual circumstances present some emergency.  Here, for example, had a hearing been held to determine whether the statutory prerequisites for a stay were satisfied, the parties would have had an opportunity to present alternative measures to the court, short of the all-inclusive stay that has generated these petitions for mandamus.

IV

37
The petitioners also request that we set aside the district court's order confining discovery to the Western District of Texas.  Control over the mechanics of discovery is left to the discretion of the trial court.  Mayo v. Tri-Bell Indus., 787 F.2d 1007, 1012 (5th Cir.1986).  Although meaningful review of this order is difficult because the district court made no findings concerning the need for this order, we cannot say it was an abuse of discretion.

V

38
For the foregoing reasons, petitioners' motions for mandamus are granted in part.11   The district court is directed to hold a hearing for the purpose of determining whether the statutory prerequisites for a stay have been satisfied, and to reconsider the propriety of a stay or other alternative measures in the light of this opinion.

1
 21 U.S.C. Sec. 881(a)(6) provides:
The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

2
 This declaration was necessary to "verify" the complaint

3
 At oral argument before us, counsel for the claimants explained that he had then offered to post a bond, set after a court-approved appraisal, to avoid the property's being seized.  The government conceded that it had refused this offer.  The government later stated that it would consider entering some sort of occupancy agreement to permit continued use of the property by the claimants during the pendency of the forfeiture proceeding

4
 Claimants' counsel indicated that the claimants now reside in Mexico

5
 According to representations made at oral argument, claimants' counsel again attempted to work out an arrangement that would avoid seizure of the property during the forfeiture proceeding.  He explained that he discharged the current property manager, who was alleged to have had some connection with Munoz Talavera, and hired a new and widely respected property manager.  Counsel offered to create new accounts for all receipts earned by the property, and to apprise the government of all receipts and disbursements the center's owner would make.  He did not, after having been once refused, offer to post a bond.  The government rejected these offers and hired its own property manager
In its haste to move decisively in this highly publicized case, the actions of the United States, including the expedited procuring of arrest warrants and seizure orders for personal residences, moving ex parte for a lengthy stay and refusing to negotiate alternative means of protecting its interests, can be described as misdirected zeal and the heavy-handed exercise of power.

6
 The government's memorandum of law made no mention of the statutory authority upon which it now claims that the stay is based.  Instead, it appears to have simply sought the stay as an exercise of the court's inherent discretion to control the course of litigation.  It now argues that the stay is explicitly authorized by 21 U.S.C. Sec. 881(i)

7
 The Supplemental Rules require more definite and specific averments in a complaint than the simple "notice pleading" of the Fed.R.Civ.P.  Compare Rule 8, Fed.R.Civ.P. and Rule E(2)(a), Supplemental Rules.  Rule E(2)(a) provides:
(2) Complaint;  Security.
(a) Complaint.    In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

8
 This multidefendant conspiracy case, involving the largest single seizure of cocaine in U.S. history, is still in the pretrial stage

9
 Since the order suspending depositions was entered the same day that the order granting the government a stay was entered, it presumably restricts further taking of depositions until the resolution of the criminal case

10
 Indeed, it would appear that this court is the only one which has even heard argument on the matter

11
 The following interim order was already entered in this matter, which we reaffirm here:
In 90-8151, the district court is directed to:
1) lift its stay of the proceedings, and
2) lift its stay of discovery and permit discovery that will enable the petitioners to attempt to recover their property, subject only to limits that protect the government's legitimate interests in avoiding demonstrable prejudice to pending criminal cases or investigations.
In 90-8152, the district court is directed to:
1) lift its stay of the proceedings,
2) rule on petitioners' motion to dismiss, and
3) if it denies the motion to dismiss, lift its stay of discovery and permit discovery that will enable the petitioners to attempt to recover their property, subject only to limits that protect the government's legitimate interests in avoiding demonstrable prejudice to pending criminal cases or investigations.
Petitioners' request that the order confining discovery to the Western District of Texas be set aside is denied.


38 So.3d 138 (2010)
ATLANTIC BOATLIFTS, LLC
v.
GOLDEN MFG. INC.
No. 2D10-632.
District Court of Appeal of Florida, Second District.
June 25, 2010.
Decision Without Published Opinion Certiorari denied.


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 02-1025

CHARLES DAVIS BURRELL,

                                              Plaintiff - Appellant,

          versus

UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF DEFENSE; UNITED STATES ARMY;
BURDEN SYKES,

                                            Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-01-333)

Submitted:   April 5, 2002                 Decided:   April 23, 2002

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles Davis Burrell, Appellant Pro Se. Debra Jean Prillaman,
Assistant United States Attorney, Richmond, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Charles Davis Burrell appeals the district court’s order

dismissing his complaint.    We have reviewed the record and the

district court’s opinion and find no reversible error. Accordingly,

we affirm on the reasoning of the district court.   See Burrell v.

United States, No. CA-01-333 (E.D. Va. Oct. 24, 2001). We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                          AFFIRMED

                                2


581 F.Supp. 847 (1983)
Karen Loxley Trosdal WILLIAMS and Pamela Lynah Trosdal, By and Through her Guardian and next friend, Don F. SHARPLEY and Trust Company of Georgia Bank of Savannah, N.A., as Administrator of the Estate of Reidar A. Trosdal, Jr., Plaintiffs,
v.
UNITED STATES of America, Defendant.
Cynthia C. COOK, Plaintiff,
v.
UNITED STATES of America, Defendant and Third-Party Plaintiff,
v.
TRUST COMPANY OF GEORGIA BANK OF SAVANNAH, N.A., as Administrator of the Estate of Reidar A. Trosdal, Jr., Third-Party Defendant.
Civ. A. Nos. 482-535, 483-085.
United States District Court, S.D. Georgia, Savannah Division.
December 30, 1983.
*848 William T. Moore, Savannah, Ga., for plaintiffs.
Asst. U.S. Atty. Kenneth Etheridge, Savannah, Ga., Stephanie Grogan, Departmental Atty., Dept. of Justice, Washington, D.C., for defendant.

ORDER
ALAIMO, Chief Judge.

INTRODUCTION
This action is currently before the Court awaiting the completion of discovery and pretrial matters. Though no motions are pending in the case, the parties have submitted to the Court proposed findings of fact and conclusions of law which raise significant questions as to the Court's jurisdiction in this case. Pursuant to the power vested in it by Fed.R.Civ.P. 12(h), as well as its inherent obligation to examine its own jurisdiction, State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12 (5th Cir.1973); Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981), the Court now considers those questions and issues the following Order.

I. FACTS
The plaintiffs initiated these actions to recover damages incurred when a private powerboat operated by Reidar Trosdal, Jr., struck a mooring dolphin in the Wilmington River near the Town of Thunderbolt in Chatham County, Georgia. Trosdal was killed in the accident, while the lone passenger in the craft, plaintiff Mrs. Cynthia Cook, suffered serious injuries. Trosdal was survived by two daughters, who are the plaintiffs in action CV 482-535.
The Wilmington River is a part of the Atlantic Intracoastal Waterway ("ICW") and is maintained by the Army Corps of Engineers. In 1944, Congress appropriated funds for the general improvement of the ICW. Some of that money was spent by the Corps on the construction of mooring dolphins near various bridges along the waterway. These dolphins are composed of several telephone pole-like pilings, leaning toward a center piling and lashed or banded together at the top. At the time they were erected, the dolphins provided a mooring point for barges and other vessels *849 while awaiting their turn to pass under the suspension bridges.
The dolphin which the Trosdal boat struck was one of six dolphins originally placed to the south of the Memorial Bridge in Thunderbolt. At that time, the bridge at Thunderbolt was a "swing bridge," the center section of which would pivot 90° to allow ships to pass through the causeway. In the 1950's, the bridge was replaced by the extant Memorial Bridge, a draw-type which elevates to allow boats to pass. Over the years, the Corps had removed the other five dolphins as they lost their usefulness to modern marine traffic on the Wilmington. The last such removal occurred in 1978 when the Savannah District Corps of Engineers determined that the dolphin directly north of the dolphin here in issue had become a hazard to navigation  the cable binding the pilings together had broken, allowing the poles to fall into the channel.
It is the policy of the Corps to leave in place those dolphins which remain serviceable and provide a temporary tie-up for traffic on the waterway. Indeed, there is evidence that the remaining Memorial Bridge dolphin is still used by shrimp boats, dredges and private craft as they navigate the channel. According to the plaintiffs, it is the Corps' policy of leaving these dolphins in the ICW which led directly to the accident underlying this suit.
Plaintiffs allege that the dolphin left near the Memorial Bridge formed an obstruction to navigation which the Corps was obligated to remove from the ICW under the Rivers and Harbors Act[s] of 1890 and 1899, 33 U.S.C. §§ 403, 409, 414 (1976) or, in the alternative that the U.S. Coast Guard was obligated to mark the dolphin for the aid of navigation under 14 U.S.C. § 86 (1976).
Trosdal's surviving children seek damages for the pain and suffering inflicted upon Trosdal just prior to his death by drowning, the loss of Trosdal's future contribution to his estate and their loss of the society of their father. Plaintiff Cook has sued for damages including medical expenses incurred by her, compensation for her pain and suffering and the loss of wages resulting from her own injuries. Plaintiffs seek to hold the United States liable for these injuries through the jurisdiction created by the Suits in Admiralty Act ("SAA"), 46 U.S.C. § 742 (1976). In the event that the SAA does not provide them with proper jurisdiction for their claims, plaintiffs attempt to proceed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).
These facts are undisputed by the parties. As suggested by the defendant United States in the parties' Consolidated Pretrial Order, there is a question under these facts whether the Court has jurisdiction to consider plaintiffs' claims. Specifically, the United States avers that: (1) the Government did not waive its immunity to tort suits for discretionary governmental functions when it enacted the Suits in Admiralty Act; (2) the actions of the Corps of Engineers and the Coast Guard with regard to the Memorial Bridge dolphin in issue were purely discretionary acts; therefore, (3) the Court has no power to evaluate those governmental actions under the SAA.

II. DISCUSSION

(A) Immunity Under the SAA
The Suits in Admiralty Act was originally enacted in 1920 to provide a cause of action in personam against the United States for damages caused by its merchant vessels.
In cases where if such a vessel were privately owned or operated, or if such cargo were privately owned or possessed, or 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. § 742 (emphasis supplied). When the United States entered the merchant shipping field during World War I, sovereign immunity barred any action against the Government. The SAA was passed to facilitate the free passage of Government *850 ships while giving to those victims of wrongful actions by the Government, when acting as a shipper, an opportunity for some judicial relief. United States v. Continental Tuna Corp., 425 U.S. 164, 170-71, 96 S.Ct. 1319, 1323-1324, 47 L.Ed.2d 653 (1976).
The history of litigation under the SAA over the next forty years is fraught with confusion. Admiralty plaintiffs found it especially difficult to determine which forum should properly hear their claims. Both the SAA and the Public Vessels Act, 46 U.S.C. § 781 (1976), authorized suits in admiralty to proceed in federal district court, while the Tucker Act, 28 U.S.C. § 1346(a)(2), allowed plaintiffs with contract claims in excess of $10,000 to bring actions only in the Court of Claims.
A plaintiff with a contract claim against the United States for more than $10,000 often found himself in a difficult position. He had to choose between proceeding in the district court under one of the admiralty Acts, and proceeding in the Court of Claims under the Tucker Act. And he had to choose his forum wisely, for cases were not transferable between the district courts and the Court of Claims, and an incorrect choice could result in the applicable statute of limitations having run by the time the error was discovered. The solution of filing claims in both the district court and the Court of Claims was unavailable because under 28 U.S.C. § 1500, the Court of Claims has no jurisdiction over any claim that is the subject of a pending suit in any other court.
United States v. Continental Tuna Corp., supra at 173, 96 S.Ct. at 1325.
Congress responded to this problem in 1960 by amending the SAA in two ways. First, the language "if a private person or property were involved" was added (see highlighted statute above). Second, the language in the jurisdictional section of the Act which required a vessel to be "employed as a merchant vessel" was deleted. Id. at 177, 96 S.Ct. at 1327. These amendments were designed to alleviate some of the technical distinctions which had confused the courts and litigants as to the proper scope of jurisdiction under the SAA. S.Rep. No. 1894, 86th Cong., 2d Sess. 1, reprinted in 1960 U.S.Code Cong. & Ad. News 3583.
Nothing in the legislative history indicates motivation for the amendments beyond Congress' intent to allow the free transfer of cases between the Court of Claims and the district courts and the clarification of the jurisdiction enjoyed by those courts under the SAA and other admiralty legislation. Nevertheless, consideration of the phrase "or if a private person or property were involved" in the Act has led some courts to divine a different purpose to the amended SAA.
Early among such efforts came the Fifth Circuit Court of Appeals' decision in De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir.1971). In Judge Brown's opinion in De Bardeleben, "[h]ad the sole purpose of the [amending] legislation been to clarify the confusing language of the old SIA [sic] this would have been better done by modifying the old section 742 to contain a clear definition of merchant, public, vessels and cargoes plus a delineation of contract claims growing out of Governmental shipping operations." 451 F.2d at 145. Thus, Judge Brown set out to find what more logical meaning might be given to the statute.
Relying on the holding in Reconstruction Finance Corp. v. J.G. Menihan Corp., 312 U.S. 81, 84, 61 S.Ct. 485, 486, 85 L.Ed. 595 (1941), Judge Brown began by recognizing a trend against sovereign immunity in favor of liberal construction of congressional waivers of immunity. De Bardeleben, supra at 146. Because the amending language of the SAA provided a clear meaning on its face, the court found it unnecessary to read into the Act any exceptions to its ostensible "waiver of immunity" beyond those provided by Congress. That is, the court specifically refused to incorporate into the Act those exceptions to Government liability set out in the Federal Tort Claims Act. Id. Those exceptions *851 include an exemption for discretionary action by the Government.[1]
The Fifth Circuit concluded that the plain meaning of the SAA amendments was to "assimilate the Government to the private person in relation to any or all transactions giving rise to liability in Admiralty." Id. In short, Congress intended the new SAA to be a waiver of all governmental immunity to suits in admiralty.
It is worth noting that, although the De Bardeleben decision construed the SAA to be a complete waiver of governmental immunity, that issue was not actually before the court. The plaintiff in De Bardeleben had navigated his boat into hazardous waters by following incorrectly marked U.S. Coast and Geodetic Survey charts. 451 F.2d at 141. It was not the Survey's decision to publish those charts which gave rise to plaintiff's cause of action, then, but the Government's apparently negligent drafting of those maps.
Plaintiff's complaint thus arose from governmental action which would not ordinarily be entitled to the traditional immunity from suit which protects discretionary activity. Once the Government did exercise its discretion by deciding to publish those charts, it was bound not to mislead mariners relying on them for navigational assistance. Id. at 148-49. Given this factual basis for the opinion in De Bardeleben, those portions of the Fifth Circuit's opinion addressing the waiver of sovereign immunity for discretionary functions have been considered mere dictum. Canadian Transport Co. v. United States, 663 F.2d 1081, 1085 (D.C.Cir.1980); Bearce v. United States, 614 F.2d 556, 559 (7th Cir.1980); Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976); Rappenecker v. United States, 509 F.Supp. 1024, 1027 (N.D.Cal. 1980).
Cases which have followed the Fifth Circuit's interpretation of the SAA have generally also involved facts which did not raise the question of immunity for discretionary functions. For example, in Roberts v. United States, 498 F.2d 520 (9th Cir. 1974), plaintiffs were the widow and surviving children of a navigator of an airplane which crashed on its approach to a federally controlled airport in Okinawa. The complaint alleged that the negligence of the Air Force personnel directing the landing from the ground caused the accident. Id. at 522. While the assumption of the duty to control that airport was an exercise of policy discretion on the part of the Air Force, the actual ministerial functions of the air controllers were not. They were bound to perform their assumed duties with due diligence and could be held liable for a failure to do so. Other cases purporting to find a waiver of discretionary function immunity in the SAA have similarly relied on facts wherein the Government did not exercise its discretionary powers. See Kelly v. United States, 531 F.2d 1144 (2d Cir.1976) (considering whether negligent Coast Guard rescue operations are covered by the SAA); Nelson v. United States, 639 F.2d 469 (9th Cir.1980) (death of government subcontractor allegedly caused by failure of government supervisor to halt marine repair work in foul weather); cf. Offshore Transportation Corp. v. United States, 465 F.Supp. 976 (E.D.La.1979) (finding waiver of immunity for discretionary functions, but reviewing Coast Guard decision not to mark sunken vessel only for the existence of a rational basis).
Only the Fourth Circuit provides an exception to this pattern. In Lane v. United States, 529 F.2d 175 (4th Cir.1975), the court of appeals considered whether the United States, in the guise of the Army Corps of Engineers and the U.S. Coast Guard, was negligent in failing to mark or remove a sunken barge from the Intracoastal Waterway. Plaintiff's cabin cruiser had struck the barge while water-skiing and *852 sank. Id. at 177. Finding, "no basis upon which we can import the many exceptions in the Tort Claims Act into the Suits in Admiralty Act," the Fourth Circuit held that the SAA included an "effective waiver of sovereign immunity." Id. at 179 (citing De Bardeleben). The court went on to hold that, because those Government agencies involved knew of the wreck and the danger it posed to traffic in the ICW, the Government had abused its discretion by failing to mark the obstruction for the benefit of other vessels. Id. at 178-79.
This Court finds a more than ample basis for incorporating the discretionary function exemption of the FTCA into the Suits in Admiralty Act. As explained by the District of Columbia Circuit Court of Appeals in Canadian Transport Co. v. United States:
... the legislative history of the FTCA suggests that the exemption for discretionary functions in that Act was derived from the doctrine of separation of powers, a doctrine to which the courts must adhere even in the absence of an explicit statutory command.
663 F.2d at 1086, citing Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Thus, even if the discretionary function exemption had not been expressly included in the FTCA, 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. Canadian Transport Co., supra at 1086; see generally 4 K. Davis, Administrative Law Treatise § 25.13 (2d Ed.1983).
Those principles are equally relevant to suits brought under color of the SAA. Decisions by those branches of Government entrusted with the regulation of the Nation's navigable waterways may involve questions of public policy, economic expediency and administrative practicability which are correctly the province of agency discretion. Estate of Callas v. United States, 682 F.2d 613, 619-20 (7th Cir.1982); Gercey, supra at 539. The Court must conclude that the Suits in Admiralty Act does not constitute a waiver of the Government's immunity to suits based on the exercise of its discretionary authority. Canadian Transport Co., supra at 1086; Callas, supra at 619; Gercey, supra at 539; Gemp v. United States, 684 F.2d 404, 408 (6th Cir.1982).
Such a construction of the SAA not only comports with established axioms of strict construction of statutory waivers of immunity, United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); Fidelity Construction Co. v. United States, 700 F.2d 1379, 1383-84 (CA Fed. 1983), but also more accurately reflects the intent of Congress when it amended the SAA in 1960. See S.Rep. No. 1894 at 1. Where Congress has found judicial intrusion into executive and legislative authority advisable, it has enacted legislation allowing for the appropriate review of such actions, such as in the Administrative Procedure Act ("APA"). 5 U.S.C. § 701 et seq. (1976).[2] The Court finds similar review beyond its jurisdiction under the Suits in Admiralty Act.

(B) Discretion of the U.S.C.G. and the Corps
The next question facing the Court is whether, under the facts of the case at bar, the Coast Guard and the Army Corps of Engineers engaged in functions of discretion when they failed to mark or remove the dolphin from the Wilmington River.
"The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited." 33 U.S.C. § 403. The owners of sunken vessels which pose an obstruction to navigation are *853 required by law to "immediately mark it with a buoy or beacon ... and to maintain such marks until the sunken craft is removed or abandoned." Id. at § 409.[3] Although the ostensible impact of these requirements is upon private parties, these duties of ownership have been equally applied to the United States. Eastern Transportation Co. v. United States, 272 U.S. 675, 692-93, 47 S.Ct. 289, 293-294, 71 L.Ed. 472 (1927); Chute v. United States, 610 F.2d 7, 10 (1st Cir.1979).
Whether or not the Government owns or creates the obstruction to navigation, it maintains the authority to remove such obstructions inhabiting the waters for more than 30 days. 33 U.S.C. § 414. In actions involving private vessels and other obstructions, the term "obstruction" has been broadly construed, see United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960) (particulate matter released as industrial waste held an obstruction); United States v. Raven, 500 F.2d 728 (5th Cir.1974) (inadvertently grounded schooner held an obstruction); Orange Beach Water, Sewer and Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (11th Cir.1982) (moored towboat and barges an obstruction), and so the United States' authority to keep clear the navigable waters under § 414 may permit the removal of almost any obstruction to navigation as well.
Plaintiffs argue that the remaining dolphin near the Memorial Bridge constitutes such an obstruction and that the Government  either by virtue of its owning the dolphin, under §§ 403 and 409, or as the manager of the ICW, under § 414  was bound to mark and/or remove the dolphin from the channel. Such a construction of the law overlooks the essential character of the dolphin  the Army Corps of Engineers originally placed the dolphin in the channel to assist the navigation of the river. The dolphin was paid for by an express congressional appropriation to the Corps to create such aids.
In Chute v. United States, supra, the Court of Appeals for the First Circuit found that the deliberate placement of a vessel or other object in navigable waters by the federal government, for a proper governmental purpose, rendered inapplicable the provisions of the Rivers and Harbors Act. Id. at 10-11. The issue in Chute was whether the remains of a vessel scuttled by the U.S. Navy for target practice was an "obstruction" under the Act. Despite the fact that the vessel held no present value to the Government, the First Circuit refused to consider it a "wreck" within the meaning of § 409.
The absolute prohibition in § 409 against the sinking of a vessel in a navigable channel is obviously not intended to derogate from the federal government's power to place structures in otherwise navigable channels pursuant to its lawful authority. By the same token, the § 409 requirement that a wreck be promptly removed is obviously not applicable to an obstruction which the government placed there for a valid governmental purpose.
Id. at 11.
By comparison, the dolphin which the decedent Trosdal struck maintains substantial viability in its present location as a mooring point for boats and barges on the Wilmington River. Even if its utility has waned in recent years, as alleged by plaintiffs, its construction pursuant to a valid governmental purpose places it beyond the proscriptions of the Rivers and Harbors Act. Chute, supra at 11; Magno v. Corros, 630 F.2d 224, 227-28 (4th Cir.1980).
Were the dolphin an obstruction covered by the Rivers and Harbors Act, it would still remain within the sound discretion of the Government whether or not to remove the obstruction. Buffalo Bayou Transportation Co. v. United States, 375 F.2d 675, 677 (5th Cir.1967); Offshore Transportation Corp. v. United States, supra at *854 979; Whitmire v. United States, 493 F.Supp. 891, 893 (S.D.Fla.1980). The failure of the Government here to take any action regarding the dolphin results from a decision (or lack thereof) entirely within the discretion of the Corps and is, therefore, unreviewable by this Court under the SAA.
This is not to say that the discretion of the Corps is without any practical limitations. For example, had the Corps made a decision to remove the dolphin, it would have had to go about the work in a careful and diligent manner. See Indian Towing Co. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 126-127, 100 L.Ed. 48 (1955). But where the Government has failed to make any policy choice or decision to act, there can be no duty to act with due care. Chute, supra at 13; Magno v. Corros, supra at 228; Gercey, supra at 538.[4]
Plaintiffs respond by attempting to portray the Corps' earlier decisions to remove other dolphins as an affirmative exercise of discretion toward the single dolphin in issue. Thus, the plaintiffs view the Corps' failure to remove the dolphin as the negligent implementation of the "policy" of clearing the Wilmington River of old dolphins. The Court fails to see how such an inference might be drawn. The decision to remove other dolphins may affect the relative importance or use of that remaining dolphin, but that result does not render those decisions a positive discretionary action taken with regard to that dolphin. The Corps has in fact failed to assert any policy with regard to that remaining dolphin, and plaintiffs may not bring an action based on that failure. Magno v. Corros, supra at 228; Estate of Callas, supra at 621.

(C) The Coast Guard's Duty to Mark
The duty of the Coast Guard to mark objects in navigable waters is also a discretionary one. 14 U.S.C. § 86 provides, in pertinent part:
... the Secretary may mark for the protection of navigation any sunken vessel or other obstruction existing in navigable waters ... in such a manner and for so long as, in his judgment, the needs of maritime navigation require.
Read in harmony with the other clauses of the Act, § 86 grants to the U.S.C.G. broad discretion to determine whether or not to mark obstructions in navigable waters. Chute, supra at 13; Bearce, supra at 560; Magno v. Corros, supra at 228-29. In addition, the court in Magno v. Corros extended the logic of Chute to § 86 and found that structures intentionally placed in navigable waters for a legitimate governmental purpose were not subject to that section. 630 F.2d at 227-28.
The dolphin sub judice is clearly not an obstruction as contemplated for marking by § 86. See discussion, supra at 853-854. Moreover, even if it was an obstruction eligible for marking by the Coast Guard, the Court can find no mandatory duty on the part of the Coast Guard to do so. Plaintiffs, therefore, have failed to state any colorable claim for relief as to the actions of the Coast Guard. See also n. 3, supra at 852.

(D) Federal Tort Claims Act Remedies
Perhaps fearing that the Suits in Admiralty Act would not provide the Court with proper jurisdiction to hear their claims, the plaintiffs have offered an eleventh-hour amendment to the Consolidated Pre-trial Order in this case. In that amendment, plaintiffs offer as an alternative source of jurisdiction the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. Unfortunately, *855 the plaintiffs are mistaken in their request for an FTCA remedy for two reasons.
First, as set out in the decision of McCormick v. United States, 680 F.2d 345 (5th Cir.1982), the Suits in Admiralty Act is the loan source of jurisdiction for admiralty claims brought against the United States. McCormick involved facts uncannily similar to those now confronting this Court appellants were traversing the Choctawhatchee Bay in Florida in a small pleasure boat when the boat struck a piling and sank. Id. at 346. The piling was apparently constructed by the United States Army and was unmarked at the time of the collision.
The court noted that, after its amendment in 1960, the SAA was intended by Congress to encompass all maritime tort claims raised against the United States where the plaintiff would have a cause of action against a private party. Id. at 349. Since the appellants clearly had brought an action based on a maritime tort, the Fifth Circuit concluded that appellants had to proceed under the SAA. Id. The court of appeals then remanded the case to the district court for further determinations of fact.
Under the holding in McCormick, the plaintiffs now before the Court must proceed, if at all, under the SAA. However, there is an additional reason why the FTCA offers plaintiffs no safe harbor in this case. From the foregoing discussion concerning the actions of the Corps and the U.S.C.G., it is obvious that those agencies were acting pursuant to their discretionary authority under their respective enabling statutes. The Court was consequently barred from reviewing those actions under the SAA by sound principles of separation of powers. Those same principles would also prevent the Court from reviewing Government action under the FTCA. See Canadian Transport Co., supra at 1086; Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Of course, the express provisions of the FTCA bar the Court from consideration of claims as made by plaintiffs in any case. 28 U.S.C. § 2680(a).

III. CONCLUSION
Based on the foregoing discussion, the Court must determine that it lacks jurisdiction over the claims raised by the plaintiffs in this case, under both the Suits in Admiralty Act and the Federal Tort Claims Act.
NOTES
[1]  The court in De Bardeleben was also afraid that incorporation of FTCA exemptions might conflict with that line of cases holding the Government liable for injuries caused by the "discretionary" operation of warships on the high seas. 451 F.2d at 146. The conduct of a man-of-war does not, however, normally invoke the protection given to discretionary functions. See Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976).
[2]  Notice where the APA, as well as other statutes providing judicial review of discretionary functions, does not provide private parties with a cause of action for damages. Carson v. Alvord, 487 F.Supp. 1049, 1052-53 (N.D.Ga.1980) (APA providing no private cause of action); Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C. Cir.1983) (FTCA provides no cause of action for abuse of discretionary rulemaking by Consumer Product Safety Commission).
[3]  Other obtructions included in the Act are bridges and dikes, 33 U.S.C. § 401, and refuse, id. at § 407.
[4]  Again, the approach adopted by the Fourth Circuit in Lane, 529 F.2d 175, would have the Court review the failure of the Corps to remove the dolphin here for possible "abuse of discretion." Under that line of reasoning, the Fourth Circuit would hold the Corps liable if it failed to remove the dolphin while having knowledge that the dolphin posed a grave danger to navigation, or had in fact caused accidents in the past. See Doyle v. United States, 441 F.Supp. 701 (D.S. C.1977). Even if this Court had not rejected the analysis of Lane, the plaintiffs here admit that there is no evidence of any previous allisions with the dolphin, nor complaints by other mariners about the presence of the dolphin in the channel. Thus, even under the standard in Lane, the Court could not find fault with the actions of the Corps.


                                            MANDATE
TO THE 144TH JUDICIAL DISTRICT COURT OF BEXAR COUNTY, GREETINGS:

Before our Court of Appeals for the Fourth District of Texas on July 1, 2015, the cause upon appeal to revise or
reverse your judgment between

Ex Parte Jorge A. Garcia, Appellant(s)

V.

No. 04-14-00809-CR     and    Tr. Ct. No. 2000CR5603W

was determined, and therein our Court of Appeals made its order in these words:

     In accordance with this court’s opinion of this date, the habeas court’s
order is AFFIRMED. Appellate counsel’s motion to withdraw is GRANTED.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.

Witness the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of Texas,
with the seal of the Court affixed and the City of San Antonio on September 1, 2015.

                                                            KEITH E. HOTTLE, CLERK

                                                            Cynthia A. Martinez
                                                            Deputy Clerk, Ext. 53853


22 So.3d 555 (2009)
ZAHARIEV
v.
STATE.
No. 2D08-3946.
District Court of Appeal of Florida, Second District.
November 13, 2009.
Decision Without Published Opinion Affirmed.