Petition for Writ of Certiorari — Andersen v. United States

Supreme Geurt. U.S.

rFiILEes

021822APR7 2003

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

GARY L. ANDERSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

SONYA HARRELL HOENER

Counsel of Record for Petitioner

1200 Riverplace Boulevard, Suite 800

Jacksonville, Florida 32207

(904) 398-0900

QUESTION PRESENTED FOR REVIEW

Whether an aircraft launched from a ship on navigable waters

causing injury on land is an appurtenance of the ship for

purposes of establishing admiralty jurisdiction under the

Extension of Admiralty Jurisdiction Act.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. ..................cccseee i

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STATUTORY PROVISIONS INVOLVED........... eee l

STATEMENT OF THE CASE AND FACTS .................0080. 2

REASONS FOR GRANTING THE PETITION..........000..0... 4

THE COURT SHOULD CLARIFY ~ THE

INCONSISTENT DEFINITIONS OF

“APPURTENANCE” AMONG FEDERAL COURTS,

WHICH HAVE BEEN FURTHER CONFUSED BY

THE RECENT DECISION OF THE ELEVENTH

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TABLE OF AUTHORITIES

CASES

Anderson v. United States, 317 F.3d 1235 (11th Cir.

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Anderson v. United States, 2002 A.M.C. 2501 (M.D.Fla.).... 1

Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767 (11th Cir.

ail Ain sales shndacesernenielcpabcirrndanstonesiasnnséxonsuicibnnsiversovves 7

Duluth Superior Excursions, Inc. v. Makela, 623 F.2d 1251

I I Sia sinccaiaalt vi densscdiuacasadontiaessinshoosendisinensacia 7

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.

NE EL elirl hes arcdisaeansiihantesantestinsmbesenmensotensis 6

Garrett v. Gutzeit O/Y, 491 F.2d 228 (4th Cir. 1974)......... 5-6

Gonzalez v. M/V Destiny Panama, 102 F.Supp.2d 1352

I I anaes selcae linia sansinudessnainsaceininrnssariovednieens 7

Gowen, Inc. v. F/V Quality One, 244 F.3d 64 (1st Cir.

TNs titiccdah cies eéaphieaninibindinecesesnnonsecihicnanvedeeanaews 4,7

J.R. Davis v. W. Bruns & Co., 476 F.2d 246 (5th Cir.

a Meindl Raritan vainiebnssadasieuiaeneninnnnsaentsisivannnesannanenias 5

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

I I Be I, sa siiassanshensevervnisngassennasabebinievisaveenaintens 7

Kinsella v. Zim Israel Navigation Co., 513 F.2d 701

a rah Rica bed hascipvenyeswsiys, nknneedvhinnsaxentnnener 6-7

Mascuilli v. American Export Isbrandtsen Lines, Inc., 381

MS F PPCRSER, BW. POP) scnsensesscsscssssecvenssssesoossconcousnns 6

Scott v. MGI America, Inc., 2001 WL 185477 (N.D. Ill.) .....7

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1972).....passim

Watson v. Massman Construction Co., 850 F.2d 219

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STATUTES

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OTHER AUTHORITIES

1 Schoenbaum, Admiralty and Maritime Law §9-1, at 489 (2d

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OPINIONS BELOW

The opinion in this case issued by United States Court

of Appeals for the Eleventh Circuit is reported at 317 F.3d

1235 (2003). The opinion of the United States District Court

for the Middle District of Florida has not been published in

the Federal Supplement, but appears at 2002 A.M.C. 2501.

JURISDICTION

The Eleventh Circuit filed its decision and entered

judgment on January 7, 2003. This Court has jurisdiction to

review the circuit court’s decision by writ of certiorari

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2680(d)

The provisions of this chapter [Federal Tort Claims Act] and

section 1346(b) of this title shall not apply to—

(d) Any claim for which a remedy is provided by sections

741-752, 781-790 of Title 46, relating to claims or suits in

admiralty against the United States.

46 U.S.C. app § 740

The admiralty and maritime jurisdiction of the United States

shall extend to and include all cases of damage or injury, to

person or property, caused by a vessel on navigable water,

notwithstanding that such damage or injury be done or

consummated on land. In any such case suit may be brought

in rem or in personam according to the principles of law and

the rules of practice obtaining in cases where the injury or

damage has been done and consummated on navigable water:

Provided, That as to any suit against the United States for

damage or injury done or consummated on land by a vessel

on navigable waters, the Public Vessels Act or Suits in

Admiralty Act, as appropriate, shall constitute the exclusive

remedy for all causes of action arising after June 19, 1948,

and for all causes of action where suit has not been hitherto

filed under the Federal Tort Claims Act: Provided further,

That no suit shall be filed against the United States until there

shall have expired a period of six months after the claim has

been presented in writing to the Federal agency owning or

operating the vessel causing the injury or damage.

STATEMENT OF THE CASE AND FACTS

Petitioner, Gary L. Andersen, seeks review of the

decision of the United States Court of Appeals for the

Eleventh Circuit affirming the dismissal with prejudice of his

complaint by the United States District Court for the Middle

District of Florida. The district court dismissed his complaint

on the grounds that, because he was injured on land by an

appurtenance of a vessel on navigable waters, his claim arose

in admiralty rather than the Federal Tort Claims Act, 28

U.S.C. § 2680(d) (“FTCA”), and he failed to meet the

jurisdictional requirements under the Extension of Admiralty

Jurisdiction Act, 46 U.S.C. app. § 740 (““EAJA”). Andersen

appealed the final order of the district court to the Eleventh

Circuit, which had jurisdiction of the appeal pursuant to 28

U.S.C. § 1291. The Eleventh Circuit affirmed the decision of

the district court.

' Although the caption in the lower courts read “Gary L. Anderson,” the

correct spelling of his name as “Andersen” will be used in this petition.

Andersen, a civilian employee of a government

contractor working at the Cerro Matias Observation Post, was

seriously injured when an aircraft launched from the USS

John F. Kennedy (“the Kennedy”), a vessel on navigable

waters, released two bombs that missed their intended target

and impacted at the observation post. Andersen filed suit

under the FTCA and alternatively under the Suits in

Admiralty Act (46 U.S.C. app. § 741-752), the Public Vessels

Act (46 U.S.C. app. § 781-790), and the EAJA. Andersen

contended that his claim arose under the FTCA rather than in

admiralty, because his injury occurred on land and neither the

aircraft nor the bombs were an appurtenance of the Kennedy,

,and that the injury was the result of the negligence cf the

land-based Range Control Officer. Andersen also filed a

written claim with the Naval Legal Services Office, but that

office denied the claim as outside the time limit in which to

file an admiralty claim.

Andersen contended that the United States was

negligent in failing to provide a safe work environment and

that the land-based range control officer negligently

authorized the release of the bombs outside the target range.

The district court found that the aircraft was an appurtenance

of the Kennedy because it was assigned and attached to the

vessel and operated from the vessel. The Eleventh Circuit

held that the aircraft, which caused the injuries to Andersen,

was an appurtenance to the Kennedy because it was

specifically assigned to the Kennedy and was carrying out the

mission of the Kennedy at the time the injuries occurred.

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD CLARIFY THE INCONSISTENT

DEFINITIONS OF “APPURTENANCE” AMONG

FEDERAL COURTS, WHICH HAVE BEEN FURTHER

CONFUSED BY THE RECENT DECISION OF THE

ELEVENTH CIRCUIT.

The Court attempted to formulate a bright-line test for

determining whether an injury on land is caused by an

appurtenance of a vessel on navigable waters in Victory

Carriers, Inc. v. Law, 404 U.S. 202 (1972). The lower federal

courts, however, have failed to apply this definition in a

consistent manner, resulting in a wide variety of items

considered appurtenant to a vessel. Gowen, Inc. v. F/V

Quality One, 244 F.3d 64, 68 (Ist Cir. 2001), quoting |

Schoenbaum, Admiralty and Maritime Law §9-1, at 489 (2d

ed. 1994) (the determination of whether an item is an

appurtenance “is commonly made on a case-by-case basis

without great consistency of results.”) The definition of

appurtenance and its inconsistent application are important

questions of federal law that this Court should clarify.

In Victory Carriers, the Court set forth four factors for

determining whether an action will arise in admiralty. The

typical elements of a maritime cause of action are satisfied

where (1) the equipment causing the injury is part of the

ship’s usual gear or is stored on board; (2) where the

equipment causing the injury is attached to the ship, (3) where

the equipment causing the injury is under the control of the

ship or its crew; or (4) where the accident occurred aboard

ship or on the gangplank. Victory Carriers, 404 U.S. at 213-

14. The Court held that admiralty jurisdiction did not apply,

because the operation of a forklift on land did not satisfy any

of these factors, even though the operator was moving cargo

to be loaded aboard a vessel. The Court noted that the

congressional purpose in enacting the EAJA was to provide a

remedy for cases in which a person on land was directly

injured by a vessel through collision or other accident.

Victory Carriers, 404 U.S. at 210. The Court declined “to

extend shoreward the reach of the mariti-ae law further than

Congress has approved” and displace an area traditionally

governed by state law. Victory Carriers, 404 U.S. at 211-12.

The first three Victory Carriers factors address

equipment, while the fourth addresses the location where the

injury occurred. Although the first three factors seem to

indicate whether an item of equipment is appurtentant to a

vessel, other courts have applied those factors with widely

varying results. For instance, in J.R. Davis v. W. Bruns &

Co., 476 F.2d 246 (Sth Cir. 1973), the plaintiff was injured

while unloading banana boxes from a ship using gantries

placed in the holds of the ship. Relying on Victory Carriers,

the court held that none of the elements required by maritime

jurisdiction were present in that case. Although the plaintiff

contended that the case arose in admiralty because the

equipment that injured him was attached to the ship, the court

declined to accept this argument and found that the wires

connected to the ship were not sufficiently attached to confer

admiralty jurisdiction. The equipment they were using to

unload the banana boxes was permanently affixed to the shore

and was not an appurtenance of the ship. The plaintiff also

argued that since the controls for the gantry were in the hold

of the vessel, the ship had control of the equipment that

caused plaintiff's injuries. The court also disagreed with this

argument and found that the equipment was controlled from

shore.

In Garrett v. Gutzeit O/Y, 491 F.2d 228 (4th Cir.

1974), a longshoreman unloading a vessel on a pier sued the

ship owner for injuries he sustained while unloading bales of

paper from a ship and stacking them in a shed about twenty-

five feet from the side of the ship. Plaintiff claimed that his

injuries were caused by the unseaworthiness of the vessel and

the negligence of the ship’s crew because the bales of paper

had been improperly secured in the ship’s hold during travel.

The court noted the confusion concerning the right to recover

under maritime law and the restrictions that apply to maritime

jurisdiction. Relying on Victory Carriers for the definition of

appurtenance, the court held that the case arose in admiralty

because the instrumentality of the injury was the ship’s cargo

container, in the form of the wire bands around the bales.

Garrett 491 F.2d at 232. The court also noted that once the

cargo was accepted the shipowner would be responsible for

any injury caused by a defective condition in the containers,

regardless of whether the injury occurred on board the vessel

or on the dock. Garrett, 491 F.2d at 232-33.

In Mascuilli v. American Export Isbrandtsen Lines,

Inc., 381 F.Supp. 770 (E.D. Pa. 1974), a longshoreman was

injured when he was struck by dunnage that was negligently

banded and slipped off a forklift truck being driven by

plaintiff's co-worker during cargo operations. The dunnage

had been removed from the ship, piled on the pier, and then

moved out of the way by plaintiff's co-worker. In analyzing

whether the dunnage was an appurtenance under Victory

Carriers, the court found that the dunnage was part of the

ship’s usual gear, and thus satisfied the first factor. Mascuilli,

381 F. Supp. at 775. The court noted, however, that the

dunnage was not attached to the ship or under the control of

the ship or its crew, and thus held that the plaintiff's injury

was not caused by a vessel on navigable water for purposes of

the EAJA. Mascuilli, 281 F. Supp. at 775. The Mascuilli

court also took note of the admonition of this Court to

“proceed with caution” in expanding admiralty jurisdiction,

adding that lower court judges should exercise even greater

caution in expanding admiralty jurisdiction. Mascuilli, 381 F.

Supp. at 775-76, quoting Executive Jet Aviation, Inc. v. City

of Cleveland, 409 U.S. 249 (1972).

Further attempts to refine the definition have resulted

in a similar broad array of items considered appurtenant to a

vessel. For instance, in Kinsella v. Zim Israel Navigation Co.,

513 F.2d 701 (1st Cir. 1975), plywood that had been

appurtenant to a ship at one point in time lost its character as

PR ee SESS ABNER A PB aa SR re

7

such at the time of the injury to the plaintiff, when it was not

being used for its usual function in the hold but had been set

aside to facilitate cargo unloading. The court in Kinsella

specifically noted that an item that may be an appurtenance

for some purposes at some times does not hold that character

indefinitely. Kinsella, 513 F.2d at 704. In Gowen, fishing

permits, even though intangible, were appurtenant to a vessel

because they were “‘essential to the vessel’s navigation,

operation, or mission.”” Gowen, 244 F.3d at 67, quoting

Gonzalez v, M/V Destiny Panama, 102 F.Supp.2d 1352, 1356

(S.D.Fla. 2000). In Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527 (1995), a crane attached to

a barge was an appurtenance of the barge, while in Watson v.

Massman Construction Co., 850 F.2d 219 (Sth Cir. 1988), a

compressor situated on a barge was not an appurtenance of

the barge. Compare Crotwell v. Hockman-Lewis Ltd., 734

F.2d 767 (11th Cir. 1984) (air compressor damaged aboard a

vessel was no longer appurtenant to the vessel when it injured

a worker while being unloaded on land).

Perhaps the most far-reaching extension of admiralty

jurisdiction was applied by the Eighth Circuit in Duluth

Superior Excursions, Inc. v. Makela, 623 F.2d 1251 (8th Cir.

1980). In that case, the plaintiff was struck by a car on land

whose driver had become intoxicated on a privately chartered

cruise. The court held that the plaintiff's action arose in

admiralty because the negligence alleged, that of the cruise

line’s failure to adequately supervise its passengers, occurred

on a vessel on navigable waters. Duluth Superior Excursions,

623 F.2d at 1253.

The decision of the Eleventh Circuit in Anderson v.

United States, 317 F.3d 1235 (11th Cir. 2003) provides

further confusion by holding that an aircraft releasing bombs

on land is an appurtenance of the vessel from which it was

launched. While in Anderson an aircraft and its bombs were

considered appurtenant to a vessel on navigable waters even

after being removed from the vessel, in Scott v. MGI America,

Inc., 2001 WL 185477 (N.D. IIl.), the court held that a life

raft that is part of the usual gear of a vessel but at the time of

the injury was removed from the water, inspected, repackaged

and being driven back to the vessel was not an appurtenance.

The “substantial confusion in the lower courts” noted by the

Court in Victory Carriers still exists, creating more results

that “are impossible to rationalize.” Victory Carriers, 404

U.S. at 214 n. 14. Therefore, this Court should revisit and

further refine the factors for determining whether an item

Causing injury is appurtenant to a vessel on navigable waters.

CONCLUSION

Because of the confusion among the lower federal

courts regarding the definition of an appurtenance, this Court

should grant the petition for writ of certiorari and reverse the

decision of the Eleventh Circuit.

Respectfully submitted,

SONYA HARRELL HOENER

Counsel of Record for Petitioner

1200 Riverplace Boulevard

Suite 800

Jacksonville, Florida 32207

(904) 398-0900

App. A-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-14258

Non-Argument Calendar

D.C. Docket No. 01-00422-CV-3-J-21HT

GARY L. ANDERSON,

Plaintiff-A ppellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(January 7, 2003)

Before ANDERSON, BLACK AND WILSON, Circuit

Judges.

PER CURIAM:

Gary L. Anderson’ appeals the district court’s order

dismissing his complaint with prejudice. He asserts that (1)

' The official caption of this case lists Gary L. Anderson as the plaintiff.

We note, however, that the plaintiff identifies himself as Gary W.

Andersen.

App. A-2

his claim against the United States did not arise in admiralty

and thus was properly brought under the Federal Tort Claims

Act (FTCA); and (2) even if his claim arose in admiralty, his

failure to comply with the jurisdictional requirements of the

Extension of Admiralty Jurisdiction Act (EAJA) should not

be fatal to his claim. For the reasons set forth below, we

affirm.

BACKGROUND

Anderson is a civilian employee of ITT Federal

Services Corp., a contractor of the United States. ITT is

located at the Cerro Matias Observation Post at the Atlantic

Fleet Weapons Training Facility (AFWTF). On April 19,

1999, the USS John F. Kennedy launched an armed F/A-18C

aircraft while conducting a training exercise at Vieques

Island, Puerto Rico. The aircraft released two bombs aimed

at the AFWTF range. The bombs missed the intended target

and impacted near the Cerro Matias Observation Post on the

AFWITF range, thereby injuring Anderson.

On March 21, 2001, Anderson submitted a written

claim seeking damages for his injuries with the Naval Legal

Services Office, Mid-Atlantic. The claim was denied on April

10, 2001. Thereafter, on April 18, 2001, Anderson filed a

complaint in district court under the FTCA and, alternatively,

under the Suits in Admiralty Act (SAA), the Public Vessels

Act (PVA), and the EAJA. In each claim, he alleged that the

~ United States negligently failed to provide a safe working

environment for him by causing two bombs to be dropped

near his work site, and, as a result, he suffered physical and

mental injuries. Subsequently, the United States filed a

motion to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(1), challenging the basis of subject matter

jurisdiction, and the district court granted the motion to

dismiss with prejudice. This appeal followed.

App. A-3

STANDARD OF REVIEW

We "[uJndertak[e] a de novo review of the district

court's dismissal for lack of subject matter jurisdiction."

Ambassador Factors v. Rhein-, Maas-, Und See-

Schiffahrtskontor GMBH, 105 F.3d 1397, 1398 (11th

Cir.1997).

DISCUSSION

The United States Constitution authorizes federal courts to

hear “all Cases of admiralty and maritime Jurisdiction.” U.S.

Const. art. II, § 2, cl.1. “Congress has embodied that power

in a statute giving federal district courts ‘original jurisdiction

.. Of ... [a]ny civil case of admiralty or maritime jurisdiction

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

Dock Co., 513 U.S. 527, 531 (1995) (alterations in original)

(quoting 28 U.S.C. § 1333(1)). Moreover, in 1948 Congress

enacted the EAJA, which extends admiralty jurisdiction to

“include all cases of damage or injury, to person or property,

caused by a vessel on navigable water, notwithstanding that

such damage or injury be done or consummated on land.” 46

U.S.C. app. § 740. In such cases, however, “the Public

Vessels Act or Suits in Admiralty Act, as appropriate, shall

constitute the exclusive remedy for all causes of action arising

after June 19, 1948.” /d.

3

Anderson contends that his claim against the United

States did not arise in admiralty, and, therefore, it was proper

under the FTCA. The FTCA’s waiver of sovereign immunity

excludes “[a]ny claim for which a remedy is provided by [the

PVA or SSA], relating to claims or suits in admiralty against

the United States.” 28 U.S.C. § 2680(d). Thus, if admiralty

jurisdiction exists for Anderson's claim, it cannot be brought

App. A-4

under the FTCA. See id.

To determine whether a claim falls under admiralty

jurisdiction, the United States Supreme Court enunciated two

tests, which address the location where the injury occurred

and the incident's connection to maritime activity. Jerome B.

Grubart, Inc., 513 U.S. at 534.

[Under] the location test[, a court] must determine whether

the tort occurred on navigable water or whether injury

suffered on land was caused by a vessel on navigable

water.... [Under the connection test, a] court, first, must

assess the general features of the type of incident involved

to determine whether the incident has a potentially

disruptive impact on maritime commerce. Second, a court

must determine whether the general character of the activity

giving rise to the incident shows a substantial relationship to

traditional maritime activity.

Id. (citations omitted) (internal quotation marks omitted). We

turn first to the issue of location.

A.

To satisfy the location test, we must determine

whether the injuries Anderson suffered were caused by the

Kennedy. See id.” As stated earlier, the aircraft, which was

stored on the Kennedy, released the bombs that injured

Anderson. “[{MlJaritime law... ordinarily treats an

‘appurtenance’ attached to a vessel in navigable waters as part

of the vessel itself.” Jd. at 535; see also Victory Carriers, Inc.

v. Law, 404 U.S.202, 210-11 (1971) (finding admiralty

jurisdiction for injuries “caused by an appurtenance of a

ship”). Therefore, we must determine whether the aircraft is

an appurtenance to the Kennedy.

’ Neither party disputes that the injuries alleged herein occurred on land.

App. A-5

To determine whether an item is an appurtenance to a

vessel, we “must look to the relation [it] bear[s] to the actual

service of the vessel.” In re Frolic, 148 F.921, 922 (D.R.I.

1906) (internal quotation marks omitted). The Southern

District of Florida recently defined an appurtenance as “any

specifically identifiable item that is destined for use aboard a

specifically identifiable vessel and is essential to the vessel's

navigation, operation, or mission.” Gonzalez v. M/V Destiny

Panama, 102 F. Supp. 2d 1352, 1354-57 (S.D. Fla. 2000)

(discussing cases dealing with appurtenances); see also

United States v. Dewey, 188 U.S. 254, 268 (1903) (finding

that the words “ ‘ship or vessel of war’ include[ ] her

armament ... [and] everything ... on board the ship in aid of

her operations”); Gowen, Inc. v. F/V Quality One, 244 F.3d

64, 67-71 (Ist Cir.), cert. denied, _ U.S. __, 122 S.Ct. 196

(2001) (finding that fishing permits were appurtenances to a

vessel because they were essential to the vessel’s purpose).

Neither party disputes that the aircraft was on a

mission to bomb targets on the AFWTF range. Moreover, in

his declaration, Captain Clay Sayers of the United States

Navy maintained that the aircraft was assigned to the

Kennedy’ and that its operations were controlled by personnel

aboard the Kennedy at all times. Captain Sayers also

declared that "[e]mbarked aircraft and their ordnance are the

carrier's primary offensive and defensive weapons...._ The

aircraft are an extension of the ship's ears (electronic

monitoring), eyes (surveillance), and provide offensive and —

defensive capability (air-to-air combat and air-to-ground

strike).". Thus, the aircraft was assigned to the Kennedy,

specifically, and, when conducting the bombing exercises, the

aircraft was carrying out the Kennedy's mission by testing its

offensive and defensive capabilities in air-to-ground strikes.

Accordingly, we find that the aircraft was an appurtenance to

> Anderson did not counter this evidence.

,

App. A-6

the Kennedy at the time of Anderson's injuries.” As injuries

caused by an appurtenance to a vessel are deemed to have

been caused by the vessel, Jerome B. Grubart, Inc., 513 US.

at 535, the location test is satisfied.

B.

To satisfy the connection test, we first must determine

“whether the incident involved ... [has] the potential to disrupt

maritime commerce.” /d. at 538. The AFWTF range closes

twice weekly to allow fishing vessels to gather their catch.

Thus, the bombing activities at the AFWTF range have the

potential to disrupt maritime commerce.

Next, we “must determine whether the general

character of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity.” /d. at

534. The “[nJavigation of boats in navigable waters”

establishes a substantial relationship to traditional maritime

activity. /d. at 540. The Kennedy’s activities include

navigating the world's navigable waters and managing flight

operations involving aircraft armed with ordnance to be

* Anderson asserts that if the aircraft was an appurtenance when it was

aboard the Kennedy, it ceased to be an appurtenance upon leaving the

Kennedy. See Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767, 768-69

(11th Cir. 1984) (concluding that an air compressor that was damaged

aboard a vessel was not an appurtenance when it injured a worker while it

was being unloaded on land); Kinsella v. Zim Isr. Navigation Co., 513

F.2d 701, 702-04 (ist Cir. 1975) (holding that plywood used as dunnage

to separate cargo on a vessel lost its character as an appurtenance after it

was removed from the vessel and placed over the railroad by shore-based

workers); Miller v. A/B Svenska Amerika Linien, 454 F.2d 1094, 1095-96

(3d Cir. 1971) (finding that a water bucket used for drinking was no

longer an appurtenance when it was removed from the vessel and leaked,

resulting in a puddle that caused an injury on land). Unlike in those cases,

when Anderson’s injuries occurred, the aircraft still was carrying out the

Kennedy’s mission. Thus, we find that the aircraft was an appurtenance

when it released the bombs and injured Anderson.

SRE PRIOR

App. A-7

launched at sea. Thus, the connection test is satisfied. See

id.

Anderson’s injuries were caused by the Kennedy and

were connected to maritime activity. Accordingly, his claim

arose in admiralty and cannot be brought under the FTCA.

See 28 U.S.C. § 2680(d).

II. :

Anderson filed his remaining negligence claims in

admiralty under the PVA and the SAA, both of which have a

twe year statute of limitations, and the EAJA. See Wilson v.

United States Gov't, 23 F.3d 559, 561 (Ist Cir. 1994) (

“Causes of action under both [the PVA and the SAA] may be

brought only within two years after the cause of action arises”

(internal quotation marks omitted).)° To bring suit under these

acts, a plaintiff must comply with the EAJA’s jurisdictional

requirements by (1) filing an administrative claim with the

“[flederal agency owning or operating the vessel causing the

injury or damage”; and (2) waiting six months after filing an

administrative claim to file suit against the United States. See

46 U.S.C. app. § 740; see also Turner Terminals, Inc. v.

> Anderson also contends that, the proximate cause of his injuries was the

unsafe working environment created by the United States, the negligence

of the Range Control Officer, and the negligence of the pilot. Moreover,

he contends that “the Kennedy was nothing more than a ‘fortuitous but-

for’ cause of [his] injuries and was not the proximate cause.” Initial Br. of

Appellant at 18. Assuming arguendo that these acts contributed to

Anderson's injuries, “as long as one of the putative tortfeasors was

engaged in traditional maritime activity the allegedly wrongful activity

will ‘involve’ ... traditional maritime activity and will meet the second

nexus prong.” Jerome B. Grubart, Inc., 513 U.S. at 541. As we find that

the Kennedy was engaged in traditional maritime activity, we need not

address Anderson’s alternative arguments.

° The distinctions between the SAA and the PVA are not relevant to this

appeal, because both “apply when a plaintiff brings a public-vessel-

related suit in admiralty against the United States” and both require that a

plaintiff abide by the EAJA’s jurisdictional requirements. Justice v.

United States, 6 F.3d 1474, 1475 (11th Cir. 1993).

App. A-8

United States, 177 F.2d 844, 846 (Sth Cir. 1949) (providing

that the requirement that a claim be presented to the

responsible federal agency six months before filing suit is

jurisdictional).’ In effect, the six-month requirement reduces

the two-year statute of limitations to eighteen months,

because the plaintiff must wait six months, but still file suit

within two years. Loeber v. Bay Tankers, Inc., 924 F.2d 1340,

1343 (Sth Cir. 1991) (per curiam).

Anderson filed his administrative claim with the

United States in March of 2001, which was twenty-three

months after the incident occurred and within the two-year

statute of limitations. On April 10, 2001, the United States

denied Anderson's claim. Subsequently, on April 18, 2001,

less than one month after filing his administrative claim, but

still within the two-year statute of limitations, Anderson filed

suit in district court. Anderson contends that he followed the

spirit of the law, if not the letter of the law, by filing his

administrative claim within the statute of limitations and

awaiting the government's denial before filing suit. Thus, he

contends that his failure to comply strictly with the EAJA's

filing requirements should not be fatal to his claim.

Anderson's argument mirrors the plaintiff's argument

in Pacific Bell v. United States, 636 F.Supp. 312 (N.D.Cal.

1986). In that case, the plaintiff filed an administrative claim

within the two-year statute of limitations, received a denial

less thai: two months later, and immediately filed suit. /d. at

313. Like Anderson, the plaintiff alleged that the six-month

waiting period was impractical once the claim was denied and

therefore should be ignored in such instances. /d. The court

disagreed and granted the defendant's motion for summary

judgment. /d. at 316.

Specifically, the court in Pacific Bell found “no

language in ... section [740 of the EAJA] even suggesting that

’ In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), we adopted as binding precedent all decisions of the former Fifth

Circuit handed down prior to the close of business on September 30, 1981.

App. A-9

the waiting period does not apply once a denial of a claim has

occurred.” /d. at 314. Moreover, the court found that “[t]he

interrelationship between the waiting period and the

limitation period is ... consistent as the two year period

merely provides an outside limit within which the action may

be maintained and does not preclude the application of shorter

limitation periods where appropriate.” /d. (citations omitted)

(internal quotation marks omitted). Thus, the court strictly

construed the EAJA's jurisdictional requirements. /d. at 314-

15.

We are persuaded by the reasoning in Pacific Bell.

Thus, we find that the district court properly granted the

United States’s motion to dismiss with prejudice.

CONCLUSION

Accordingly, we AFFIRM the district court’s

dismissal of Anderson's complaint with prejudice.

App. B-1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

GARY L. ANDERSON,

Plaintiff,

V. CASE NO. 3:01-CV-422-J-21-HTS

UNITED STATES OF AMERICA,

Defendant.

ORDER

Filed herein is Defendant's Motion to Dismiss (Dkt.

4), Plaintiff's response in opposition thereto (Dkt. 7), and

Defendant's reply (Dkt. 16).

I. GENERAL BACKGROUND

In this matter, Plaintiff, Gary L. Anderson’, a civilian,

sues Defendant, United States of America, for injuries caused

when an FA-18C military aircraft--which was launched from

the aircraft carrier, USS John F. Kennedy (“Kennedy”)--

released two bombs during a training exercise at Vieques

Island, Puerto Rico on April 19, 1999. The bombs missed

their intended target on the bombing range and, instead,

impacted near the Cerro Matias Observation Post at the

Atlantic Fleet Weapons Training Facility where Plaintiff was

' Plaintiff's name in the caption of the Complaint (Dkt.1) appears to be

inaccurate according to his Affidavit (Dkt. 7, Exh. A) wherein Plaintiff is

identified as Gary W. Andersen.

App. B-2

working for a civilian contractor. As a result, Plaintiff

incurred the injuries giving rise to this lawsuit.

Plaintiff alleges Defendant was negligent in the

bombing incident. First, because Defendant failed to provide

adequate physical protection on the ground for personnel

working in the Cerro Matias Observation Post despite a

number of recent “close calls” prior to the incident giving rise

to this lawsuit. Additionally, Plaintiff claims that the pilot of

the aircraft was negligent in releasing the bombs because he

failed to visually sight his proper target before releasing the

ordnance. Last, Plaintiff alleges that the Range Control

Officer (“RCO”), who is on the ground at the bombing range,

acted negligently because he violated regulations by

authorizing the bombs’ release before he visually sighted the

aircraft. -

Approximately twenty-three months after the bombing

incident, on March 21, 2001, Plaintiff filed a claim with the

Naval Legal Services Office, Mid-Atlantic, Norfolk, VA,

(“NLSO”), which was denied on April 10, 2001. Thereafter,

on April 18, 2001, Plaintiff filed this lawsuit. Plaintiff's first

count is brought under the Federal Tort Claims Act, 28 U.S.C.

§§ 2671-2680 (“FTCA”). Alternatively, and only if the FTCA

is inapplicable, Plaintiff pleads three counts: Count II under

the Suits in Admiralty Act, 46 U.S.C. app. §§ 741-752

(“SAA”); Count lil under the Public Vessels Act, 46 U.S.C.

app. §§ 781-790 (“PVA”); and Count IV under the Extension

of Admiralty Jurisdiction Act, 46 U.S.C. app. § 740

(“EAJA”).

The allegations relied upon in each of the four claims

is the same: (1) the United States owed a duty to Plaintiff to

refrain from inflicting harm or injury to him; (2) the United

States breached that duty to Plaintiff by negligently failing to

provide Plaintiff a safe work environment and by negligently

causing, two bombs to be dropped from a military aircraft onto

Plaintifi's work site; and (3) as a result of such breach,

Plaintiff suffered physical and mental injuries. (Dkt. 1).

App. B-3

Defendant filed this Motion to Dismiss under Rule 12(b)(1),

Federal Rules of Civil Procedure, arguing that Plaintiffs

Complaint must be dismissed with prejudice because this

Court lacks subject matter jurisdiction over Plaintiff's lawsuit

because Plaintiff did not comply with pre-suit requirements.

II. RULE 12(b)(1) MOTION TO DISMISS STANDARD

Because this Motion to Dismiss is before the Court under

Rule 12(b)(1), the Plaintiff's allegations are not presumed to

be true. As the Eleventh Circuit explained:

Attacks on subject matter jurisdiction under

Fed.R.Civ.P. 12(b)(1) come in two forms. “Facial

attacks” on the complaint “require[ ] the court

merely to look and see if [the] plaintiff has

sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in his complaint are

taken as true for the purposes of the motion.”

Menchaca v. Chrysler Credit Corp., 613 F.2d 507,

511 (Sth Cir.), cert. denied. 449 U.S. 953, 101 S.Ct.

358, 66 L.Ed.2d 217 (1980) (citing Mortensen v.

First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d

Cir. 1977). “Factual attacks,” on the other hand,

challenge “the existence of subject matter

jurisdiction in fact, irrespective of the pleadings, and

matters outside the pleadings, such as testimony and

affidavits, are considered.” Id.

These two forms of attack differ substantially. On a

facial attack, a plaintiff is afforded safeguards

similar to those provided in opposing a Rule 12(b)(6)

motion--the court must consider the allegations of

the complaint to be true. Williamson v. Tucker, 645

F.2d 404, 412 (Sth Cir.), cert. denied, 454 U.S. 897,

102 S.Ct. 396, 70 L.Ed.2d 212 (1981). But when the

attack is factual, the trial court may proceed as it

never could under 12(b)(6) or Fed.R.Civ.P. 56.

App. B-4

Because at issue in a factual 12(b)(1) motion is the

trial court's jurisdiction--its very power to hear the

case--there is substantial authority that the trial court

is free to weigh the evidence and satisfy itself as to

the existence of its power to hear the case. In short,

no presumptive truthfulness attaches io plaintiffs

allegations, and the existence of disputed material

facts will not preclude the trial court from evaluating

for itself the merits of jurisdictional claims. Id. at

412-13 (quoting Mortensen, 549 F.2d at 891).

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.

1990) (emphasis added). Explained another way,

a Rule 12(b)(1) motion can serve either purpose. If it

simply challenges the sufficiency of the allegations

of subject matter jurisdiction, then the pleading’s

contents are taken as true for purposes of the motion.

However, if it challenges the actual existence of

subject matter jurisdiction, then the pleading’s

allegations are merely evidence on the issue. Since

the party invoking the federal court's jurisdiction has

the burden of proving the actual existence of subject

matter jurisdiction regardless of the pleading’s

allegations, the courts have held that the pleader

must establish jurisdiction with evidence from other

sources, such as affidavits or depositions. The

general rule, therefore, is that a _pleading’s

allegations of jurisdiction are taken as true unless

denied or controverted by the movant. Thus, if the

movant fails to contradict the pleader’s allegation of

subject matter jurisdiction in his motion to dismiss

under Rule 12(b\(1), then he is presumed to be

challenging the pleading’s sufficiency under Rule

8(a)(1), and the allegations of the pleading pertaining

to jurisdiction are taken as true. But if the movant,

App. B-5

either in his motion or in any supporting materials,

denies or controverts the pleader's allegations of

jurisdiction, then he is deemed to be challenging the

actual existence of subject matter jurisdiction, and

the allegations of the complaint are not controlling.

* * *

The court will not accept as true allegations that are

contradicted by facts that can be judicially noticed or

by other allegations or exhibits attached to or

incorporated in the pleading. On the other hand, the

allegations of the pleading will be supplemented by

any relevant matter that can be judicially noticed or

by the contents of any exhibits attached to the

pleading or any matter validly incorporated by

reference.

5A Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 1363 (2d e.1990).

When Defendant has challenged jurisdiction, the

burden of proving that this Court has subject matter

jurisdiction over this claim remains upon Plaintiff. Id. at §

1350. Plaintiff may rebut Defendant’s assertion by providing

the Court with evidence that jurisdiction is proper and that the

claim is not frivolous. Id. In determining whether jurisdiction

is proper, the Court must weigh the merits of what is

presented by the parties. Id. The Court is free to review and

weigh the evidence presented by both parties that is outside

the four corners of the complaint. The Court, having reviewed

both the arguments and evidence presented by both parties,

determines that this Motion to Dismiss challenges the basis of

subject matter jurisdiction and, as such, is a factual challenge.

App. B-6

III. PARTIES’ ARGUMENT ON THE MOTION TO

DISMISS

Defendant seeks dismissal of Plaintiffs first count,

brought under the FTCA, because the waiver of sovereign

immunity granted by the FTCA does not encompass “[a]ny

claim for which a remedy is provided by [the PVA or SAA]

relating to claims or suits in admiralty against the United

States” 28 U.S.C. § 2680(d). Defendant further cites to the

EAJA, which extends admiralty jurisdiction to claims such as

those in this case, wherein it provides:

[A]s to any suit against the United States for damage

or injury done or consummated on land by a vessel

on navigable waters, the Public Vessels Act or Suits

in Admiralty Act, as appropriate, shall constitute the

exclusive remedy for all causes of action arising

after June 19, 1948 ....

46 U.S.C. app. § 740. Consequently, Defendant argues that

because Plaintiff's claim is required to be brought under the

PVA or SAA, it may not be raised under the FTCA.

With regard to Plaintiffs three additional alternative

admiralty counts, Defendant asserts that these counts must be

dismissed as time-barred under the EAJA, which Defendant

asserts is applicable to this matter. The EAJA provides:

[N]o suit shall be filed against the United States until

there shall have expired a period of six months after

the claim has been presented in writing to the

Federal agency owning or operating the vessel

causing the injury or damage.

Id. Essentially, by requiring a party suing the United States to

wait six months after filing a claim in writing, the EAJA cuts

short the PVA and SAA’s two-year statute of limitations by

six months. A party seeking to sue the United States under the

PVA or SAA must meet all requirements including filing an

administrative claim within the first eighteen months after

App. B-7

such injury occurred or be time-barred from pursuing his or

her claim. Therefore, Defendant seeks dismissal of all counts.

Plaintiff asserts that the application of admiralty law is

improper; first, because land based bombing does not have a

potential to affect maritime activities. Defendant counters this

assertion by stating that it routinely publishes notices to

mariners “to warn of potential threats to maritime traffic”

when conducting “training flight operations in coastal

waters.” (Dkt. 5, Exh. 2 at ¥ 8). Moreover, Defendant submits

the Manual for the Use of the Atlantic Fleet Weapons

Training Facility, which provides that the bombing range is

closed for two hours per day, two days per week, to “permit

local fishermen to retrieve fishing traps from adjacent

waters.” (Dkt. 16, Exh. 5).

Plaintiff further submits that all negligence was land-

based (the RCO’s failure to visually sight the aircraft before

giving the pilot authorization to drop the bombs) or air-based

(the pilot’s failure to visually sight the target area before

dropping the bombs), but not water-based. As support for his

position, Plaintiff submits his own declaration stating that he

previously worked for nine years as a RCO at the bombing

range on Vieques Island and has worked various additional

capacities at the range since 1981; thus Plaintiff is very

familiar with the manner in which bombing training

operations are conducted at the range. (Dkt. 7, Exh. A at ¥ 1).

Plaintiff asserts that all “ordinance [sic] materials utilized

during training operations are required to be dropped on land”

(Id. at § 4) and that the aircraft was “under the direct and

exclusive control of the [RCO] located at the Cerro Matias

Observation Post.” (Id. at § 6). Furthermore, according to

Plaintiff, the RCO improperly allowed the bombs to be

dropped in violation of regulations requiring that he “visually

sight each aircraft before providing authorization to drop

ordinance [sic].” (Id. at J 10).2 Moreover, Plaintiff asserts

that the aircraft involved did not return to the Kennedy, but

? Plaintiff did not attach such regulations to his affidavit.

App. B-8

x

landed at the U.S. Naval Station Roosevelt Roads, Puerto

Rico. (Id. at § 13).

Defendant disputes Plaintiff's assertions that the pilot

or the RCO controlled the FA-18C military aircraft; rather,

Defendant maintains that the aircraft is attached to and is

equipment assigned to the Kennedy and was merely operated

by the pilot. (Dkt. 5, Exh. 2). The RCO, according to

Defendant, does not control aircraft using the bombing range,

but only controls the range itself; thus, the RCO’s role is

limited to communicating that the range is either clear or not

clear. (Dkt. 16, Exh. 6). Nevertheless, the “RCO’s primary

responsibility is safety”; moreover, he is not to let “perceived

pressure to complete scheduled operations interfere with

safety considerations.” (Id, Exh. 4 at § 5) (emphasis

omitted).

Defendant further asserts that the aircraft remained

under the control of the Kennedy at all times. In support of its

assertion, Defendant offers the declaration of Captain Clay

Sayers, USN, wherein he declares that the military aircraft

involved in the April 19, 1999 incident belonged to Marine

Fighter/Attack Squadron Two-Fifty-One, which was assigned

to the Kennedy and was, at all times, operationally and

administratively controlled by the personnel aboard the

Kennedy. (Dkt. 5, Exh. 2; Dkt. 16, Exh. 3). Plaintiff has not

countered this evidence that the aircraft was assigned to the

Kennedy.

Defendant further maintains that, while the pilot of the

aircraft is responsible for the “safe, orderly flight of the

aircraft[,]” his mission is set forth before leaving the ship and,

unless the safety of the aircraft is affected, cannot be altered

except by a “higher authority[.]” (Dkt. 16, Exh. 3). Capt.

Sayers also states that the F/A-18C was launched from and,

atter a delay caused by the bombing incident, was eventually

recovered aboard the Kennedy. According to Capt. Sayers,

this aircraft and its ordnance are examples of the Kennedy’s

primary offensive and defensive weapons. Moreover, the

App. B-9

aircraft aboard the Kennedy are “an extension of the ship's

ears (electronic monitoring), eyes (surveillance), and provide

offensive and defensive capability (air-to-air combat and air-

to-ground strike).” (Dkt. 5, Exh. 2 at ¥_ 6).

IV. ADMIRALTY JURISDICTION

The Court first turns to Defendant’s assertion that this

case may not be brought under the FTCA because it is an

admiralty action required to be brought under the PVA or

SAA? In determining whether this lawsuit falls under

admiralty jurisdiction, the Court applies the traditional

location and maritime connection tests set forth by the United

States Supreme Court in Jerome B. Grubart, Inc. v. Great

Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).

A court applying the location test must determine

whether the tort occurred on navigable water or

whether injury suffered on land was caused by a

vessel on navigable water.

Id. (citing EAJA, 46 U.S.C. app. § 740) (emphasis added).

A. Location Test

It is undisputed that the injuries claimed herein were

suffered on land, not on navigable water. Therefore, in

determining whether admiralty law applies, the Court must

determine whether the injuries were caused by the Kennedy,

which was a vessel on navigable water, or an appurtenance to

> For purposes of this Motion to Dismiss, the distinctions between the

PVA and SAA are irrelevant as both require a plaintiff to abide by the

jurisdictional requirements in the AEJA.

App. B-10

the Kennedy.” If the FA-18C which dropped the bombs that

injured Plaintiff is an appurtenance of the Kennedy, then

admiralty law applies.

Neither party has cited, nor has the Court found,

authority which directly addresses the issue of whether a

military aircraft is an appurtenance of the aircraft carrier to

which it is attached. The determination of what is an

appurtenance to a ship has long troubled courts.”

Nevertheless, a recent decision of the Southern

District of Florida provides guidance on the definition of

appurtenance. Gonzalez v. M/V Destiny Panama, 102 F.Supp.

2d 1352, 1354-57 (S.D. Fla. 2000) (collecting cases). The

Gonzalez court addressed the issue of whether replacement

* It is settled that “maritime law ... ordinarily treats an ‘appurtenance’

attachéd to a vessel in navigable waters as part of the vessel itself.”

Grubart, 513 U.S. at 535.

“ In The Frolic, the Rhode Island District Court stated:

It may not be a simple matter to define what is, and what is not,

an appurtenance of a ship. There are some things that are

universally so-- things which must be appurtenant to every

ship, qua ship, be its occupation what it may. But | think it is

rather gratuitously assumed that particular things may not

become so from their immediate and indispensable connection

with a ship in the particular occupation to which she is destined

and in which she is engaged.

* * *

The word "appurtenances" must not be construed with a mere

reference to the abstract naked idea of a ship, for that which

would be an encumbrance to a ship one way employed would

be an indispensable equipment to another; and it would be a

preposterous abuse to consider them alike in such different

positions. You must look to the relation they bear to the actual

service of the vessel.

The Frolic, 148 F. 921, 922 (D.R.I. 1906) (internal quotes and citations

omitted). The court went on to find that a chronometer, while not usually

appurtenant to a schooner, was, nevertheless, an appurtenance in that

instance because it was necessary to that particular schooner for a

particular purpose on a particular journey.

App. B-11

engines, purchased by the owner of the vessel and stored in a

terminal yard within the judicial district, were appurtenances

to a vessel which had been arrested for a maritime lien. Prior

to the arrest, the engines had been purchased to replace

engines which were installed but did not function. The

Gonzalez court found that the replacement engines were

appurtenances by reviewing case law and determining that

“(njeither installation, location, nor ownership is dispositive”

of whether an item is an appurtenance. Id. at 1356. The court

determined that the item must be “specifically identifiable”

and must be “destined for use aboard a_ specifically

identifiable vessel” and, furthermore, must be “essential to the

vessel's navigation, operation, or mission.” Id. See also

United States v. Dewey, 188 U.S. 254, 268 (1903) (finding

that a vessel's appurtenances include armament and other

equipment which supported the ship’s “operations”); Gowen

Inc. v. F/V_Quality One, 244 F.3d 64, 67 (Ist Cir. 2001)

(finding that fishing permits, although intangible, were

appurtenances to fishing vessel because essential to vessel’s

purpose).

The Plaintiff argues that, even if the military aircraft

were an appurtenance when embarked upon the Kennedy, it

ceased to be an appurtenance upon leaving the Kennedy. As

support, Plaintiff cites the following cases for this

proposition: Kinsella v. Zim Israel Navigation Co., Ltd., 513

F.2d 701 (1st Cir. 1975) (plywood owned by vessel and used

as dunnage to separate cargo during shipping was not

appurtenance after being removed from vessel, stored on

shore, and subsequently placed over railroad by shore-based

workers to facilitate use of a forklift); Crotwell v. Hockman-

Lewis, Ltd., 734 F.2d 767 (11th Cir. 1984) (air compressor

damaged in hold of vessel by improper packing and later

causing injury to a construction worker on land was not an

appurtenance after being removed); and Miller v. A/B

Svenska America Linien, 454 F.2d 1094 (3rd Cir. 1971)

(bucket used for water on board vessel was not an

appurtenance after removal when it leaked and the resulting

App. B-12

puddle caused injury on land). The Court finds that these

cases are all distinguishable in that the item causing the injury

had been used for a particular purpose aboard the vessel and

was no longer fulfilling that purpose when it caused the injury

giving rise to the lawsuit.

In the instant case, the military aircraft had not been

“removed” from the ship by the ship’s controllers. Rather, it

is clear from a review of the record that the FA-18C was

assigned to the Kennedy and was on a mission to bomb land

based targets. This mission was initiated specifically on

behalf of the Kennedy. The aircraft was not an independent

craft, but was assigned, attached to, and operating from the

Kennedy.

Based on the undisputed facts in the record, the Court

finds that the military aircraft--the FA-18C--was an

appurtenance to the Xennedy at the time of the incident.

While flying a mission from the Kennedy, the aircraft

dropped the bombs which caused the damage to Plaintiff.

Damage caused by an appurtenance to a vessel is deemed to

have been caused by the vessel. Therefore, the injuries giving

rise to this lawsuit were caused by a vessel on navigable

waters and thus the maritime location requirement is fulfilled.

B. Maritime Connection Test

With regard to the maritime connection or “nexus”

test, the Court must first determine whether “the incident

involved was of a sort with the potential to disrupt maritime

commerce.” Grubart, 513 U.S. at 538. Next, it must determine

whether “the general character of the activity giving rise to

the incident shows a substantial relationship to traditional

maritime activity.” Id.

It is clear from a review of the record that bombing

activities at the Vieques bombing range has the potential to

significantly disrupt maritime commerce. For example, the

App. B-13

range must close twice weekly for fishing vessels to gather

their catch from traps nearby. This incident meets the first

prong of the nexus test.

Next, the Court determines that the Kennedy’s general

activities demonstrate a substantial relationship to traditional

maritime activity. For example, the Kennedy’s activities--

specifically, navigating a carrier in the world's navigable

waters and running flight operations in which aircraft armed

with ordnance are launched at sea--are clearly sufficient to

potentially affect traditional maritime activities. Moreover,

even assuming that the RCO or the pilot's acts contributed to

the damage sustained to Plaintiff, Grubart makes it clear that

the Court need

look only to whether one of the arguably proximate

causes of the incident originated in the maritime

activity of a tortfeasor: as long as one of the putative

tortfeasors was engaged in traditional maritime

activity the allegedly wrongful activity will

"involve" such traditional maritime activity and will

meet the second nexus prong.

Id. at 541. The involvement of the pilot or RCO is not

sufficient to remove this case from the admiralty jurisdiction.

The Court finds that the incident herein sufficiently involves

traditional maritime activity.

Finding that this is a case arising in admiralty, this

lawsuit may not be brought under the FTCA and may be

maintained appropriately only as an admiralty case under the

PVA or the SAA. Accordingly, Plaintiff's Count I is due to be

dismissed.

V. EXTENSION TO ADMIRALTY JURISDICTION

ACT ("EAJA")

With regard to Plaintiff's remaining counts in admiralty, in

order to bring his suit under either the PVA or the SAA--both

App. B-14

of which have a two-year statute of limitations--Plaintiff must

first comply with the jurisdictional requirements under the

EAJA for filing suit against the United States. Turner

Terminals, Inc. v. United States, 177 F.2d 844, 846 (Sth Cir.

1949).° (dismissing an action where the plaintiff had failed to

first file administrative claim).

The EAJA requires that an administrative claim be

filed with the responsible federal agency. Id. Next, the EAJA

includes the jurisdictional requirement that the plaintiff wait

six months after filing an administrative claim to file a

lawsuit. See Rashidi v. Amer. Pres. Lines, 96 F.3d 124 (Sth

Cir. 1996) (EAJA's requirement that a written claim be

presented six months before suit is filed is jurisdictional);

Loeber v. Bay Tankers, Inc., 924 F.2d 1340 (Sth Cir. 1991)

(same); Turner, 177 F.2d at 846 (same); Weatherford v.

United States, 957 F. Supp. 830 (M.D. La. 1997) (finding that

an administrative claim filed six days before the expiration of

the two-year statute of limitations and a lawsuit filed six

months after receipt of denial was not sufficient to equitably

toll the statute of limitation in the SAA); Pacific Bell v.

United States, 636 F. Supp. 312 (N.D. Cal. 1986) (holding

plaintiff's claim time-barred under EAJA because it must wait

six months after filing administrative claim before filing suit

and granting summary judgment); cf. T.J. Falgout Boats, Inc.

v. United States, 508 F.2d 855 (9th Cir. 1974) (SAA two-year

period of limitations is jurisdictional and cannot be tolled).

This six-month requirement effectively shortens the two-year

statute of limitations to eighteen months because a plaintiff

must wait six months, but must still file within two years.

Hahn v. United States, 218 F. Supp. 562, 567 (E.D. Va.

1963); Loeber, 924 F.2d at 1343.

Defendant seeks dismissal of Plaintiff: alternative

admiralty claims because Plaintiff filed his administrative

° In Bonner vy. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

the Eleventh Circuit adopted as binding precedent all decisions rendered

by the former Fifth Circuit prior to October 1, 1981.

App. B-15

claim twenty-three months after the incident and did not await

the statutory six months prior to filing suit against the United

States. Plaintiff asserts that dismissal of his case would be

improper and beyond the purpose and intent of the AEJA.

Plaintiff does not dispute that he failed to await the additional

six months before filing this lawsuit.

Plaintiff insists that this failure is not relevant because

the purpose of the six-month waiting period was to allow the

Government time to consider the claim and to avoid

unnecessary and expensive litigation. (Dkt. 17 at 14) (citing

Carr v. United States, 136 F.Supp. 527 (E.D. Va. 1955); 1948

U.S.Code Cong. Serv., 1898). Moreover, Plaintiff contends

that his actions were proper in that he followed the spirit of

the law, if not the letter of the law, because he filed his

administrative claim and waited for the claim to be denied

prior to filing this lawsuit. Plaintiff asserts that, once his claim

was denied, he was free to file suit.

Plaintiff attempts to distinguish his case from cases

such as Pacific Beil v. United States, 636 F. Supp. at 314-15.

In Pacific Bell, a plaintiff claimed that the United States Navy

had negligently dropped an anchor on an_ underwater

telephone cable. The plaintiff filed an administrative claim

with the Navy twenty-two months after the anchoring incident

caused the damage. The Navy denied the claim less than two

months later. Immediately upon receipt of the denial notice,

the plaintiff filed suit under the SAA. The plaintiif's lawsyit

was filed within the SAA’s two-year statute of limitations.

The plaintiff, however, failed to await the expiration of the

six-month period before filing the lawsuit as required by the

EAJA.’ The Navy moved for summary judgment because the

plaintiff had failed to meet the jurisdictional requirements of

suing the United States under the EAJA. The district court

granted summary judgment in favor of the United States.

’ The plaintiff in Pacific Bell did not dispute the applicability of the EAJA

to its claim, i.e. agreeing that the damage or injury in that case was done

‘wr consummated on land. Pacific Bell, 636 F.Supp. at 313.

App. B-16

Plaintiff attacks the reasoning of the Pacific Bell,

court stating that court did not provide a well-reasoned

opinion on the issue presented and incorrectly relied upon a

previous district court case, Hahn v. United States, 218

F.Supp. 562 (E.D. Va. 1963), which addressed the issue of

whether the filing of an administrative claim with the federal

agency tolled the two-year statute of limitations. Plaintiff

states that, in the instant case, he is not seeking a ruling that

the statute is tolled; rather, Plaintiff seeks a ruling that, once

the NLSO denied his claim, he was fre to file suit. Plaintiff

reasons that the purpose of the EAJA had been served by

putting Defendant on notice and by giving Defendant time to

consider the claim before it.

The Court finds that Pacific Bell and the instant case

are factually and legally similar and that the reasoning

explicated in Pacific Bell is persuasive. The two cases are

factually similar in that both plaintiffs claim that the United

State Navy negligently caused harm which resulted in

damages on land. Both plaintiffs filed administrative claims

mere than eighteen months after the date of the incident

causing the damage, and, then, after the claims were denied,

both plaintiffs, although filing their lawsuits before the two-

year limitation period in the SAA and PVA, filed such

lawsuits less than six months after the filing of their

administrative claims--in the case of plaintiff Pacific Bell,

two months and in the case of Plaintiff Andexson, four weeks.

The plaintiff's legal arguments in Pacific Bell mirror

the arguments set forth herein by Plaintiff Anderson. Both

assert that the six-month waiting period should be ignored

when the claim has been denied because such waiting period

serves no purpose once the claim has been denied. Moreover,

both maintain that the government--by denying the claim--

clearly had time to consider such claim; therefore the six-

month waiting period is not relevant because such waiting

period was intended merely to allow the government time to

settle claims and avoid litigation. In both cases, the

government promptly denied the administrative claim--in less

SS

App. B-17

than two months in Pacific Bell, and in less than one month in

the instant case.

As previously stated herein, the EAJA’s preclusion of a

lawsuit earlier than six months from the presentation to the

appropriate federal agency is jurisdictional. E.g. Loeber, 924

F.2d at 1342. Further, as stated in pertinent part by the Pacific

Bell court:

The Hahn court based its holding on general

principles of sovereign immunity. It recognized that

“Ti]t is well settled that when the sovereign consents

to be sued, ‘the terms of its consent to be sued in any

court define that court’s jurisdiction to entertain the

suit.” “ [218 F.Supp.] at 565 (quoting United States

v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85

L.Ed. 1058 (1941).

* * *

When the language of a waiver of sovereign

immunity clearly imposes a condition upon a

plaintiff's right to sue the government, a court may

not disregard that condition. [The EAJA]

unambiguously requires a plaintiff to wait six

months after filing a claim before filing suit.

* * *

[N]othing in the legislative history or the language of

the statute suggests that denial of a claim relieves a

plaintiff from the six month waiting period, Pacific

Bell’s argument merely suggests that the Congress

should have drafted a narrower provision that would

have served the primary purpose of [the EAJA].

With respect to other waivers of sovereign

immunity, Congress has indeed drafted narrower

provisions. Under the Federal Tort Claims Act, for

example, a plaintiff may file suit as soon as the

App. B-18

relevant agency has denied his or her claim and

‘[t]he failure of an agency to make a final disposition

of a claim within six months after it is filed shall, at

the option of the claimant any time thereafter, be

deemed a final denial of the claim....” 28 U.S.C. §

2675(a) (1976). Nevertheless, it is not the province

of this Court to redraft the terms upon which the

Congress waives the sovereign immunity of the

United States Government.

Pacific Bell, 636 F.Supp. at 314-15.

The Pacific Bell court did not strictly rely on the

reasoning in the Hahn case, as Plaintiff asserts, but relied

heavily on the language of the EAJA. Finding that the plain

language of the statute required the court to find that the

plaintiff had failed to meet the requirements of the EAJA, the

court determined that it lacked jurisdiction to entertain the

lawsuit and entered summary judgment for the defendant.

This Court agrees and finds that Defendant is entitled to

dismissal as hereinafter provided.

As set forth above, Plaintiff filed his claim with

Defendant in March 2001, approximately twenty-three

months after the incident occurred. Thereafter, Plaintiff filed

this lawsuit in April 2001, iess than a month after filing the

written claims with Defendant but before the two-year time

limitation provided in the PVA and SAA. Nevertheless,

Plaintiff failed to meet the requirements of the EAJA by filing

his administrative claim within eighteen months of the

incident giving rise to this lawsuit. This failure is fatal to his

claim. The resulting denial by the NLSO does not operate to

waive this requirement for Plaintiff. Thus, Defendant is

entitled to the dismissal of Plaintiff's Counts II, III, and IV

arising in admiralty.

Although the proper application of the controlling

authorities may be severe, nevertheless, the plain language of

the EAJA needs no further interpretation and must be

complied with strictly for an admiralty case to be maintained

App. B-19

against the United States for damages on land caused by a

vessel in navigable water. :

VI. CONCLUSION

With regard to dismissing a complaint with prejudice,

the general rule in the Eleventh Circuit is that where a ‘more

carefully drafted complaint might state a claim, a plaintiff

must be given at least one chance to amend the complaint

before the district court dismisses the action with prejudice.”

Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Two

exceptions exist: (1) where the plaintiff expresses a desire not

to amend his or her complaint; and (2) where “a more

carefully drafted complaint could not state a claim under the

standard of Conley, 355 U.S. at 45-46 ..., dismissal with

prejudice is proper.” Id. In the instant case, no purpose would

be served by allowing Plaintiff to amend his Complaint

because it is apparent that even a more carefully drafted

complaint would fail to state a claim under the FTCA or the

EAJA.

Upon consideration of the foregoing, it is hereby

ORDERED:

1. Defendant’s Motion to Dismiss (Dkt. 4) is

GRANTED and the Complaint is DISMISSED with

prejudice.

2. The Clerk is DIRECTED to close this case and

terminate all pending motions, if any, and delete this case

from the roll of pending cases. |

DONE AND ORDERED, at Jacksonville, Florida,

this 3rd day of June, 2002.

/s/

RALPH W. NIMMONS, JR.

UNITED STATES DISTRICT JUDGE