# Petition for Writ of Certiorari — Andersen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 965

## Text

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
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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.

aE Ratekinashsntdinekntcsnscerwmmesiniiseiabiseniersasnane hy ¥
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
Ss vauslsdansibvaenliosbudioonss 7

iV

STATUTES

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OTHER AUTHORITIES

1 Schoenbaum, Admiralty and Maritime Law §9-1, at 489 (2d
Oh FE wieeeicateicanedtisltsiduntsaiaitieenabinnionndinstbi aimee 4

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1682%3A1. Public record. Not legal advice.