Abdulhalim Ali v. Robert Rogers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDULHALIM A. ALI and MOHAMED No. 13-15145

FAISAL ALI,

Plaintiffs-Appellants, D.C. No.

3:12-cv-00340-

v. NC

ROBERT ROGERS, AKA Bob Rogers

and WILLIAM BARTLETT, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge

Argued and Submitted

February 10, 2015—San Francisco, California

Filed March 19, 2015

Before: Mary M. Schroeder, Senior Circuit Judge, Barry G.

Silverman, Circuit Judge, and Marvin J. Garbis, Senior

District Judge.*

Opinion by Judge Silverman

*

The Honorable Marvin J. Garbis, Senior District Judge for the U.S.

District Court for the District of Maryland, sitting by designation.

2 ALI V. ROGERS

SUMMARY**

Admiralty Law

The panel affirmed the dismissal for lack of jurisdiction

of a civil rights action brought by two Yemeni-born Muslim

seamen.

The first seaman’s claims concerned conduct aboard a

tanker ship owned by the United States Maritime

Administration, an agency of the federal government, but

operated by a private company under a contract. The panel

held that the conduct complained of had such a sufficient

maritime connection that the seaman’s complaint included at

least one claim that could have been brought as a “civil action

in admiralty” against the private wrongdoers, and therefore,

pursuant to the Suits in Admiralty Act and the Public Vessels

Act, should have been brought against the United States. The

panel held that these statutes, which are analogous to the

Federal Tort Claims Act, waive the government’s sovereign

immunity in admiralty actions involving U.S. government-

owned vessels, and in doing so provide the exclusive remedy

for such actions.

The second seaman alleged that he was not hired to work

aboard the ship because of his religion and national origin,

violating both his constitutional rights and his union’s

collective bargaining agreement with the company. The

panel held that because the seaman could have brought suit in

admiralty for breach of the collective bargaining agreement

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALI V. ROGERS 3

related to the crewing of the U.S.-owned vessel, his exclusive

remedy was against the United States.

COUNSEL

Arnold I. Berschler (argued), Berschler Associates P.C., San

Francisco, California, for Plaintiffs-Appellants.

Eric Kaufman-Cohen (argued), Trial Attorney, Civil

Division/Torts Branch, United States Department of Justice,

San Francisco, California, for Defendant-Appellee.

OPINION

SILVERMAN, Circuit Judge:

Abdulhalim Ali was a seaman aboard a tanker ship owned

by the United States Maritime Administration, an agency of

the federal government, but operated by a private company

under a contract. At all material times, the ship was in

navigable water. Ali alleges that the human resources

director of the company operating the ship ordered the ship’s

captain to fire him because he is of Yemeni origin. Ali

brought a civil rights lawsuit naming as defendants the H.R.

director and the captain of the ship, but not the United States.

We hold today, as the district court did, that the conduct

complained of had such a sufficient maritime connection that

the plaintiff’s complaint includes at least one claim that could

have been brought as a “civil action in admiralty” against the

private wrongdoers, and therefore, pursuant to the Suits in

Admiralty Act and the Public Vessels Act, should have been

brought against the United States. These statutes, which are

4 ALI V. ROGERS

analogous to the Federal Torts Claim Act, waive the

government’s sovereign immunity in admiralty actions

involving U.S. government-owned vessels, and in doing so

provide the exclusive remedy for such actions. Because

Abdulhalim Ali sued the H.R. director, rather than the United

States, his complaint was properly dismissed for lack of

jurisdiction. (The captain was never served.)

Mohamed Ali alleges that the day after Abdulhalim Ali

was fired, he (Mohamed) was present in the hiring hall of the

Seafarers International Union and saw a listing for a job

aboard the same government-owned ship from which

Abdulhalim Ali was fired. Mohamed Ali alleges that he was

not hired on the orders of the H.R. director because of his

religion and national origin, violating both his constitutional

rights and his union’s collective bargaining agreement with

the company. He named only the H.R. director as a

defendant. We also hold today that because Mohamed Ali

could have brought suit in admiralty for breach of the

collective bargaining agreement relating to the crewing of

this U.S.-owned vessel, his exclusive remedy – including for

his civil rights claims, which he could have alleged as being

closely linked to the putative breach of contract claim – was

against the United States. Therefore, his complaint, too, was

properly dismissed for lack of jurisdiction.

I. Background

In reviewing an order dismissing a case for failure to state

a claim, we “take as true all factual allegations in the

complaint and draw all reasonable inferences in the plaintiff’s

favor.” Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.

2011).

ALI V. ROGERS 5

Plaintiffs Abdulhalim Ali and Mohamed Faisal Ali

alleged the following: They are both Yemen-born Muslims

who are now United States citizens. Both belong to the

Seafarers International Union. In January 2010, Abdulhalim

Ali was on the crew of the SS PETERSBURG, a vessel

owned by the United States Maritime Administration, an

agency of the United States Department of Transportation.

Interocean American Shipping Corporation had contracted

with the United States to provide civilian personnel to operate

the PETERSBURG. Interocean also has a collective

bargaining agreement with the union, under which

Abdulhalim Ali was employed on the PETERSBURG.

Robert Rogers is a Vice President of Interocean and

Director of its human resources department. On January 23,

2010, Rogers, “acting under color of law,” ordered the

captain of the PETERSBURG, William Bartlett, to terminate

the employment of anyone on the ship “who appeared to be

of Yemanese [sic] origin and/or of Arabic descent and/or a

follower of Islam.” In compliance with that order, Captain

Bartlett fired Abdulhalim Ali and ordered him to leave the

ship, which was in navigable waters, and Ali left. The

following day, Mohamed Ali, who was in the union hiring

hall in Oakland, California, saw a listing for a position on the

PETERSBURG. His seniority in the union ranks meant that

he had first choice of jobs, and he applied for the position.

However, Rogers directed that Ali should not be hired, and

that the job should instead be given “to another union

member who was apparently not of Yemanese [sic] origin,

Arabic descent and/or a follower of Islam.”

Abdulhalim Ali and Mohamed Ali sued Rogers exactly

two years after the date on which Abdulhalim Ali’s

employment was terminated, each bringing claims under

6 ALI V. ROGERS

42 U.S.C. §§ 1981 and 1983. Abdulhalim Ali described his

claims as being for “Wrongful Termination -

Discrimination,” while Mohamed Ali’s claims were for

“Discrimination in Contracting” and “Discrimination in

Hiring.” The district court dismissed the complaint for lack

of subject matter jurisdiction. Noting that there was no

dispute that the PETERSBURG is a “public vessel owned by

the United States . . . [and] operated by Interocean” as the

United States’ agent, the district court concluded that the

plaintiffs were required, by the terms of both the Clarification

Act, 50 App. U.S.C. § 1291, and the Suits in Admiralty Act

(“SIAA”), 46 U.S.C. §§ 30901 et seq., to sue only the United

States for admiralty claims. The district court concluded that

both plaintiffs’ claims satisfied the location and nexus tests

for admiralty jurisdiction, so since the claims were filed

against Rogers, rather than the United States, the district court

dismissed the complaint with prejudice.

Abdulhalim Ali and Mohamed Ali now appeal. We have

jurisdiction under 28 U.S.C. § 1291 to review the district

court’s final decision.

II. Discussion

A. Standard of Review

We review de novo a district court’s order dismissing a

case for lack of subject matter jurisdiction. Gruver v. Lesman

Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007).

B. Statutory Framework

The SIAA waives sovereign immunity for the United

States in cases where “a civil action in admiralty could be

ALI V. ROGERS 7

maintained” against a private person in the same situation.

46 U.S.C. § 30903(a).1 That is, if a vessel is owned by the

United States, and someone is harmed by the vessel or one of

its employees, and the harm is one for which, if the vessel

were privately owned, the harmed individual could have sued

its owner in admiralty, then the person can bring – indeed,

must bring – that admiralty claim against the United States.

Id.; see Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995,

996 (9th Cir. 1997) (through the SIAA, government is subject

to “the same liability . . . as is imposed by the admiralty law

on the private shipowner”). This makes the SIAA “the

maritime analog to the FTCA.” Huber v. United States,

838 F.2d 398, 400 (9th Cir. 1988). In plain terms, the SIAA

applies when (1) a vessel is owned by the United States or

operated on its behalf, and (2) there is a remedy cognizable in

admiralty for the injury. See Williams v. Central Gulf Lines,

874 F.2d 1058, 1061–62 (5th Cir. 1989) (framing SIAA

inquiry in two parts: first, whether the vessel is owned by

United States or an agent, and second, whether the claim

stated is a “traditional admiralty claim”). The SIAA provides

no cause of action; it just waives sovereign immunity where

1

46 U.S.C. § 30903(a) provides in full:

(a) In general.—In a case in which, if a vessel were

privately owned or operated, or if cargo were privately

owned or possessed, or if a private person or property

were involved, a civil action in admiralty could be

maintained, a civil action in admiralty in personam may

be brought against the United States or a

federally-owned corporation. In a civil action in

admiralty brought by the United States or a

federally-owned corporation, an admiralty claim in

personam may be filed or a setoff claimed against the

United States or corporation.

8 ALI V. ROGERS

an admiralty remedy is available. Dearborn, 113 F.3d at 996

n.1.

The SIAA has a two-year statute of limitations. 46 U.S.C.

§ 30905. Further, any remedy available under the SIAA is

exclusive of any other remedy “arising out of the same

subject matter” that the plaintiff might bring against the

individual who actually caused the harm at issue. 46 U.S.C.

§ 30904.2 That is, “where a remedy lies against the United

States, a suit against an agent of the United States ‘by reason

of the same subject matter’ is precluded.” Dearborn, 113 F.3d

at 997. As the Fifth Circuit has explained, “a remedy is

provided” within the meaning of the SIAA when, “one, the

underlying maritime law would permit the seaman to state the

same claim against a private party, and two, the United States

has waived its sovereign immunity with respect to that

claim.” Martin v. Miller, 65 F.3d 434, 442 (5th Cir. 1995).

Moreover, the remedy available against the United States

need not be the same as that available against a private party

for this provision to apply. See id. at n.4. After an extensive

review of the legislative history and case law surrounding the

SIAA, the Fourth Circuit explained that the exclusivity

provision’s language was intended to enshrine a Supreme

Court case holding that the SIAA “furnish[es] the exclusive

remedy in admiralty against the United States . . . on all

maritime causes of action arising out of the possession or

operation” of vessels. Manuel v. United States, 50 F.3d 1253,

2

46 U.S.C. § 30904 provides in full:

If a remedy is provided by this chapter, it shall be

exclusive of any other action arising out of the same

subject matter against the officer, employee, or agent of

the United States or the federally-owned corporation

whose act or omission gave rise to the claim.

ALI V. ROGERS 9

1257 (4th Cir. 1995) (quoting Johnson v. U.S. Shipping Bd.

Emergency Fleet Corp., 280 U.S. 320, 327 (1930), overruled

in part on other grounds by Brady v. Roosevelt Steamship

Co., 317 U.S. 575, 578 (1943)). The Fourth Circuit

acknowledged that this may lead to a “harsh result” in some

cases, because of the resulting lack of certain remedies for

seamen, but explained that the exclusivity language “clearly

dictates this result.” Id. at 1260.

Also relevant to this case is another statutory waiver of

federal sovereign immunity in the admiralty context, the

Public Vessels Act (“PVA”). 46 U.S.C. §§ 31101 et seq. The

PVA applies to “civil action[s] in personam in admiralty . . .

for damages caused by a public vessel of the United States.”

46 U.S.C. § 31102(a)(1). Claims under the PVA have certain

limitations that SIAA claims do not, but none that are

relevant here. More importantly, the PVA makes all claims

subject to the SIAA, including its statute of limitations and its

exclusivity provision, except to the extent to which the two

are inconsistent. 46 U.S.C. § 31103; see also Dearborn,

113 F.3d at 996–97 (noting that the SIAA’s exclusivity rule

is incorporated by reference into the PVA). Though some

circuits interpret the term “damages” caused by a public

vessel narrowly (i.e., as encompassing only physical injuries),

we recently reaffirmed that the PVA includes claims arising

out of the conduct of employees on a public vessel, not

merely direct physical damages. See Tobar v. United States,

639 F.3d 1191, 1198 (9th Cir. 2011). And despite expansive

revisions to the SIAA, the Supreme Court continues to rule

that any suit for damages caused by a public vessel falls

under the PVA; under Tobar and predecessor cases, those

damages will include contract damages. Id. Any other

admiralty claim against a federally-owned vessel will fall

10 ALI V. ROGERS

under the SIAA. United States v. United Cont’l Tuna Corp.,

425 U.S. 164, 181 (1976).3

C. Admiralty Jurisdiction

The Constitution’s grant of federal jurisdiction for

admiralty, “codified at 28 U.S.C. § 1333(1), allows the filing

of claims related to maritime contracts and maritime torts.”

In re Mission Bay Jet Sports, LLC, 570 F.3d 1124, 1126 (9th

Cir. 2009). Over time, courts have developed tests for both

types of claim that determine whether a claim has sufficient

“maritime flavor” that a litigant may properly invoke federal

admiralty jurisdiction. See Owens-Illinois, Inc. v. U.S. Dist.

Court for W. Dist. of Washington, at Tacoma, 698 F.2d 967,

969–70 (9th Cir. 1983); David J. Bederman, Admiralty

Jurisdiction, 31 J. Mar. L. & Com. 189, 206 (2000) (tracing

development and contours of admiralty jurisdiction).

1. Tort

Tort claims may sound in admiralty jurisdiction if they

satisfy a test with three components showing that the claim

has the requisite maritime flavor. Christensen v. Georgia-

3

Rogers argues that a third admiralty statute, the Clarification Act,

applies to Abdulhalim’s claims because he was employed on a vessel

owned by the federal Maritime Administration. 50 App. U.S.C. § 1291(a).

But this statute only covers claims for “death, injuries, illness,

maintenance and cure, loss of effects, detention, or repatriation, or claims

arising therefrom,” as well as claims for “collection of wages and bonuses

and making of allotments,” requiring such claims to first go through an

administrative exhaustion process and then, if they are administratively

disallowed, be brought under the SIAA. Id. We cannot agree that

Abdulhalim’s claims are for the type of harms specifically covered by the

Clarification Act.

ALI V. ROGERS 11

Pac. Corp., 279 F.3d 807, 814 (9th Cir. 2002). The relevant

tort or harm must have (1) taken place on navigable water (or

a vessel on navigable water having caused an injury on land),

(2) “a potentially disruptive impact on maritime commerce,”

and (3) a “substantial relationship to traditional maritime

activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co., 513 U.S. 527, 534 (1995). We look at a tort

claim’s general features, rather than at its minute particulars,

to assess whether there is the requisite connection; thus, for

instance, when a crane on a river barge flooded a tunnel, the

Supreme Court spoke of “damage by a vessel in navigable

water to an underwater structure,” and when two girls were

thrown off a Sea-Doo into San Diego’s Mission Bay, the

Ninth Circuit described the incident as “harm by a vessel in

navigable waters to a passenger.” Id. at 539; Mission Bay Jet

Sports, 570 F.3d at 1129.

2. Contract

As with torts, in determining whether there is admiralty

jurisdiction over a given contract, the court’s task is to

determine whether it is adequately maritime in nature.

Federal courts have admiralty jurisdiction over a contract “if

its subject matter is maritime.” La Reunion Francaise SA v.

Barnes, 247 F.3d 1022, 1024 (9th Cir. 2001) (quoting Royal

Ins. Co. of America v. Pier 39 Ltd., 738 F.2d 1035, 1036 (9th

Cir. 1984)). The answer to the question of whether a given

contract is a “maritime” contract “ ‘depends upon . . . the

nature and character of the contract,’ and the true criterion is

whether it has ‘reference to maritime service or maritime

transactions.’” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 24

(2004) (quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. &

Shipbuilding Co., 249 U.S. 119, 125 (1919)). Of particular

relevance to this case, it is well settled that “a contract for

12 ALI V. ROGERS

hire either of a ship or of the sailors and officers to man her

is within the admiralty jurisdiction.” Kossick v. United Fruit

Co., 365 U.S. 731, 735 (1961).

D. Plaintiffs’ Claims Are Subject to the Public Vessels

Act and Suits in Admiralty Act

Having outlined the general landscape (or should we say

seascape?) of admiralty jurisdiction and waivers of sovereign

immunity, we consider whether plaintiffs’ claims are

sufficiently maritime in nature that they should have been

brought under the PVA and SIAA rather than against Rogers.

As noted, it is undisputed that the PETERSBURG is a

“public vessel of the United States.” Therefore, assuming

some form of damages is involved, both Abdulhalim Ali and

Mohamed Ali’s claims are subject to the PVA, and through

it the SIAA, if they have claims that can be properly

characterized as “civil action[s] in personam in admiralty.”

46 U.S.C. § 31102.

We hold that Abdulhalim Ali’s allegations against Rogers

establish that his claims have the requisite maritime flavor to

constitute a “civil action in personam in admiralty” and be

subject to the PVA and SIAA. 46 U.S.C. §§ 31102–31103.

Ali alleged that the PETERSBURG’s captain fired him from

the ship’s crew, in violation of the collective bargaining

agreement, while he was aboard the ship, and while the ship

was docked in navigable waters. The district court treated

Ali’s claims as tort claims, noting that Ali’s termination from

the ship’s crew could potentially have disrupted the ship’s

activities because it was then missing a crew member;

furthermore, the activity in which he was engaged, crewing

a ship, is one of the most basic “traditional maritime

ALI V. ROGERS 13

activities” that exists. We need express no opinion as to

whether Ali’s discrimination claims could be considered

admiralty torts. His claims under §§ 1981 and 1983 also

include allegations raising a breach of contract claim. Such

a claim would be indisputably maritime in nature, since Ali’s

contract was for employment to operate the PETERSBURG

on navigable waters. See Kossick, 365 U.S. at 735.

Given that the PETERSBURG is a public vessel, and

Ali’s claims are based on conduct resulting from its

operation, the PVA’s waiver of sovereign immunity is

applicable, and Ali is thus able to sue the United States. But

PVA claims are also generally subject to the SIAA, and the

SIAA’s exclusivity provision precludes any claims arising

from the same facts from being brought against any parties

but the United States. See 46 U.S.C. § 30904. Consequently,

Ali not only could sue the United States, if he wanted any

relief, he was required to do so. See id.; see also Manuel,

50 F.3d at 1259–60. Since Ali’s discrimination claim against

Rogers is “a suit against an agent of the United States ‘by

reason of the same subject matter’ [it] is precluded.”

Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995, 997

(9th Cir. 1997) (quoting 46 U.S.C. § 30904).

Mohamed Ali also pleaded his claims under §§ 1981 and

1983. However, he was neither aboard the PETERSBURG

nor yet hired to work on its crew when Rogers directed that

he not be hired, for allegedly discriminatory reasons.

Therefore, the harm did not take place on navigable waters as

required for admiralty tort jurisdiction. However, Ali alleged

that he was entitled to the benefit of his union’s collective

bargaining agreement and that Rogers breached this contract

by a discriminatory refusal to hire him as a crew member of

the PETERSBURG. Such an agreement plainly will have

14 ALI V. ROGERS

“reference to maritime service or maritime transactions,”

thereby satisfying the “true criterion” for what makes a

maritime contract, and qualifying for admiralty contract

jurisdiction. Norfolk S. Ry. Co., 543 U.S. at 24 (citation

omitted). Although Ali’s portion of the complaint pleaded

claims under §§ 1981 and 1983, he could have brought a

breach of contract claim in admiralty jurisdiction. Such an

action would be “a civil action in admiralty [that] could be

maintained,” so both that claim and his discrimination claims,

which “aris[e] out of the same subject matter” and are closely

linked to the contract claim, are subject to the SIAA’s

exclusivity provision. 46 U.S.C. §§ 30903, 30904.4

Therefore, Ali was required to bring his claims against the

United States, not against Rogers. Since he did not, the

district court rightly concluded that it lacked subject matter

jurisdiction over the claims. In holding that these plaintiffs’

claims are barred by the SIAA, we express no view on the

merits of these claims in admiralty. Our inquiry is a

jurisdictional one only.

III. Conclusion

Neither party has argued that plaintiffs’ discrimination

claims could be brought as admiralty claims; therefore, we

reiterate that we express no opinion on that issue. Rather, we

conclude that because Abdulhalim Ali and Mohamed Ali’s

claims both involved a contract for employment or potential

employment aboard a public vessel of the United States and

have sufficient maritime connection, they were required to

4

Like Abdulhalim’s claim, Mohamed’s claims are subject to the SIAA

by way of the PVA, since contract damages caused by a public vessel are

subject to the PVA. Tobar v. United States, 639 F.3d 1191, 1198 (9th Cir.

2011).

ALI V. ROGERS 15

bring those claims against the United States. Since they sued

Rogers instead, the district court correctly determined that it

lacked subject matter jurisdiction over their claims.5

AFFIRMED.

5

We do not remand with instructions that the district court give leave for

plaintiffs to amend their complaint, because the SIAA’s two-year statute

of limitations has run, 46 U.S.C. § 30905, and the plaintiffs make no

argument that any sort of tolling or relation back applies.