Opposition Brief — Andersen v. United States

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

No. 02-1822

Jn the Supreme Court of the Anited States

GARY L. ANDERSEN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR!

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

ANTHONY J. STEINMEYER

MICHAEL E. ROBINSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether the courts below properly held, applying

the settled principles established by this Court’s

precedents, that this action to recover for injuries

caused by a United States carrier-launched aircraft

falls within federal admiralty jurisdiction.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Crotwell v. Hockman-Lewis in 734 F.2d 767

(11th Cir. 1984)

Davis v. W. Bruns & Co.;- 476 F.2d 246 (5th Cir.

1973)

Duluth Superior Excursions, Inc. v. Makela, 623

Fe I I BOD vttnsivstniccnseseniosinnsivniciasneoaseiconerneosnes

Garrett v. Gutzeit, 491 F.2d 228 (4th Cir. 1974) oo...

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

1352 (S. D. Fla. 2000)

Gowen, Inc. v. F/V Quality One, 244 F.3d 64

(1st Cir.), cert. denied, 534 U.S. 886 (2001)

Gutierrez v. Waterman S.S. Corp., 373 U.S. 206

(1963)

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

Dock Co., 513 U.S. 527 (1995)

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

(1st Cir. 1975)

Mascuilli v. American Exp. Isbrandtsen Lines, Inc.,

381 F. Supp. 770 (E.D. Pa. 1974), aff’d, 511 F.2d 1394

(3d Cir.), cert. denied, 423 U.S. 834 (1975)

Scott v. Trump Ind. Inc., 337 F.3d 939 (7th Cir. 2008) ....

Victory Carriers, Inc. v. Law, 404 U.S. 202

| AN SSIEATEG FRE ACEH Sn POA RE a oe

Watson v. Massman Constr. Co., 850 F.2d 219 (5th

Cir. 1988)

(IIT)

Constitution and statutes: Page

U.S. Const. Art. ITI, § 2, Cl. 1 ........ . 2

Extension of Admiralty Jurisdiction Act, 46 U.S. C.

App. 740 .......... -

Federal Tort Claims Act:

BE Ue. BRIE) seen: peemnenecnnnnnnnniminatennnamnnitii

Be CA Be ecient hcniccsinncicieninininittninentanininaniii

SB UE, BEG) ecctvinssssnsesnseneonsnipvennnuninstvtnnntaoesnsannneannn

Public Vessels Act, 46 U.S.C. App. 781 et seq. ......scsceseseees

Se TEEN GD FO scesiceevinnsitccntianresnninieivcniiiinteaiaiinniiiins

SB UAG. BRN TEE iildcistinlseinianinnitianinnions ;

Suits in Admiralty Act, 46 U.S.C. App. 741 et seq. .........0

TE DKA FIN OEE seviciniinterneienniinnniggnttinienniainimnmana

BG SA TR FO sesiiciestiivnsiseviicthinierinictiniamiinnibcioniiinia

SE, WE ertiiieisiclaieraleniasinidiiatiasinaivintiniitaneiacimmaitin

ee)

wWwmNWwNW DS WS Ww &

bo 0

Jn the Supreme Court of the Gnited States

No. 02-1822

GARY L. ANDERSEN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A9)

is reported at 317 F.3d 1235. The opinion of the district

court (Pet. App. B1-B19) is reported at 245 F. Supp. 2d

1217.

JURISDICTION

The judgment of the court of appeals was entered on

January 7, 2003. The petition for a writ of certiorari

was filed on April 7, 2003. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Article III, Section 2, Clause 1 of the United

States Constitution extends the federal judicial power

to “all Cases of admiralty and maritime Jurisdiction.”

That authority is embodied in 28 U.S.C. 1333, which

grants federal district courts “original jurisdiction,

exclusive of the courts of the States, of * * * Any civil

ease of admiralty or maritime jurisdiction, saving to

suitors in all cases all other remedies to which they are

otherwise entitled.”

The Suits in Admiralty Act (SAA), 46 U.S.C. App.

741 et seq., provides that, “[iJn cases where * * * a

proceeding in admiralty could be maintained, any ap-

propriate nonjury proceeding in personam may be

brought against the United States.” 46 U.S.C. App.

742. The Public Vessels Act (PVA), 46 U.S.C. App. 781

et seq., also stipulates that “[a] libel in personam in

admiralty may be brought against the United States

* * * for damages caused by a public vessel of the

United States.” 46 U.S.C. App. 781. Suits authorized

by the PVA or the SAA “may be brought only within

two years after the cause of action arises.” 46 U.S.C.

App. 745, 782.

The Extension of Admiralty Jurisdiction Act (Exten-

sion Act), 46 U.S.C. App. 740, provides that federal

admiralty jurisdiction shall “include all cases of dam-

ages or injury, to person or property, caused by a vessel

on navigable water,” even if such injury occurs on land.

The Extension Act further provides 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 [PVA] or [SAA], as appropriate, shall con-

stitute the exclusive remedy.” Jbid. (internal citations

omitted). The Extension Act also provides that “no

suit”—including one under the PVA or SAA—“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.”

Ibid. -

b. The Federal Tort Claims Act (FTCA) makes th

United States liable for “personal injury or death

caused by the negligent or wrongful act or omission of

any employee of the Government while acting within

the scope of his office or employment.” 28 U.S.C.

1346(b)(1); see 28 U.S.C. 2674. The FTCA’s waiver of

sovereign immunity, however, expressly excludes

“fajny 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). Asa

result, “any claim” that is actionable in admiralty under

the PVA or SAA is barred under the FTCA.

2. Petitioner is a civilian employee of a government

contractor that operates at the Cerro Matias Observa-

tion Post at the Atlantic Fleet Weapons Training

Facility on Vieques Island, Puerto Rico. On April 19,

1999, an F/A-18C military aircraft took off from the air-

craft carrier USS John F. Kennedy and dropped two

bombs during a training exercise on Vieques. The

bombs missed their targets on the training range,

landed near the Cerro Matias Observation Post, and

injured petitioner. Pet. App. A2.

On March 18, 2001—nearly 23 months after he sus-

tained his injuries—petitioner filed an administrative

claim with the Navy. That claim was denied on April

10, 2001. On April 18, 2001—one month: after he filed

his administrative claim—petitioner filed this action

against the United States in the District Court for the

Middle District of Florida He alleged that the United

States negligently failed to provide a safe working

environment for him, resulting in physical and mental

injuries. He asserted claims under the FTCA and,

alternatively, the PVA, SAA, and Extension Act. Pet.

App. A2.

3. The district court granted the government’s

motion to dismiss. Pet. App. B1-B19. The court first

held that petitioner’s i°TCA claim is barred by 28

U.S.C. 2680(d), discussed above, if admiralty jurisdic-

tion exists. Pet. App. B6. Next, applying the location

and connection tests of Jerome B. Grubart, Inc. v.

Great Lakes Dredge & Dock Co. (Grubart), 513 U.S. 527

(1995), the court held that this action falls within

admiralty jurisdiction and that, therefore, it may be

“maintained appropriately only as an admiralty case

under the PVA or the SAA.” Pet. App. B13. Finally,

the court held that petitioner’s claims under the PVA

and SAA are barred because petitioner failed to meet

the statutory prerequisite, discussed above, that in a

case under the Extension Act, a plaintiff must wait at

least six months after filing an administrative claim to

file a lawsuit under the PVA or SAA. 7d. at B13-B19.

In finding that admiralty jurisdiction exists, the

district court explained that the “location” test looks to

“whether the tort occurred on navigable water or

whether injury suffered on land was caused by a vessel

on navigable water.” Pet. App. B9 (quoting Grubart,

513 U.S. at 534). In addition, the court noted, “[iJ]t is

settled that ‘maritime law .. . ordinarily treats

an “appurtenance” attached to a vessel in navigable

waters as part of the vessel itself,” such that an injury

caused by an appurtenance is treated as one caused by

the vessel. Jd. at B10 n.4 (quoting Grubart, 513 U.S. at

535). The court found that the aircraft that released

the bombs that injured petitioner is an “appurtenance”

to the aircraft carrier that it was “assigned [to],

attached to, and operating from” at the time of the

training exercise, and that, therefore, under settled

maritime law, “the injuries giving rise to this lawsuit

were caused by a vessel on navigable waters.” Id. at

B12.

4. The court of appeals affirmed in a per curiam

decision. Pet App. Al-A9. The court agreed with the

district court’s analysis that, under the principles ap-

plied in Grubart, admiralty jurisdiction exists in this

case and precludes petitioner’s claim under the FTCA.

Id. at A4-A7. In so holding, the court found that the

military aircraft that released the bombs that injured

petitioner is an “appurtenance” to the aircraft carrier

from which it took off on the training mission at issue,

such that petitioner’s injuries are “deemed to have been

caused by the vessel.” Jd. at A4-A6. The court

explained that, in general, an aircraft carrier’s “aircraft

are an extension of the ship’s ears (electronic moni-

toring), eyes (surveillance), and provide offensive and

defensive capability.” Jd. at A5. And “the aircraft [in

this case] 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.” Jbid.; see id. at A6 n.4.

The court of appeals further held that petitioner’s

admiralty claims are barred because he cannot satisfy

the jurisdictional prerequisite of the Extension Act that

a plaintiff must wait six months after filing an ad-

ministrative claim before initiating suit. Pet. App. A7-

AY.

ARGUMENT

The court of appeals’ per curiam decision involves a

fact-bound application of the jurisdictional principles

established by this Court’s admiralty decisions. Al-

though the facts of this admiralty case are somewhat

unusual, the decision below is correct and does not

conflict with any decision of this Court or any other

court of appeals. The sole ground for certiorari that is

presented by petitioner is that the Court should “revisit

and further refine the factors for determining whether

an item causing injury is appurtenant to a vessel on

navigable waters.” Pet. 8; see Pet. 4-8. Petitioner has

not demonstrated that such guidance is needed and, in

any event, this case would be an ill-suited vehicle for

the Court to revisit this area of law in light of its unique

facts.

1. As this Court recognized in Grubart, “maritime

law * * * ordinarily treats an ‘appurtenance’ attached

to a vessel in navigable waters as part of the vessel

itself” and thus torts committed by an appurtenance

are deemed for purposes of maritime law to be com-

mitted by the vessel itself. 513 U.S. at 535 (citing

Victory Carriers, Inc. v. Law, 404 U.S. 202, 210-211

(1971); and Gutierrez v. Waterman S.S. Corp., 373 U.S.

206, 209-210 (1963)).

Victory Carriers involved a claim brought by a

longshoreman who was injured by a forklift on land

while loading cargo alongside a ship. 404 U.S. at 203.

In holding that this claim did not fall under admiralty

jurisdiction, the Court noted that it lacked the four

“typical elements of a maritime cause of action”: “({1]

respondent * * * was not injured by equipment that

was part of the ship’s usual gear or that was stored on

board, [2] the equipment that injured him was in no

way attached to the ship, |3] the forklift was not under

the control of the ship or its crew, and [4] the accident

did not occur aboard ship or on the gangplank.” Jd.

at 213-214. Lower courts have applied the Victory

Carriers factors in determining whether an injury-

causing item is an appurtenance to a vessel triggering

maritime jurisdiction under the Extension Act.

The fact pattern in which the admiralty jurisdiction

question arises in this case is admittedly novel, but the

courts below properly held that the aircraft that re-

leased the bombs that injured petitioner is an “appurte-

nance” to the aircraft carrier to which the fighter was

stationed. As the court of appeals explained, “the

aircraft was assigned to the Kennedy” and “its opera-

tions were controlled aboard the Kennedy at all times.”

Pet. App. A5. In addition, “when conducting the bomb-

ing exercises [that injured petitioner], the aircraft was

carrying out the Kennedy’s mission by testing its

offensive and defensive capabilities in air-to-ground

strikes.” Ibid. More generally, aircraft assigned to

aircraft carriers are considered by the military to be

“an extension of the ship’s ears (electronic monitoring),

eyes (surveillance), and provide offensive and defensive

capability.” Ibid. In short, such an aircraft is an inte-

gral component of the aircraft carrier itself and

therefore reasonably regarded as an appurtenance to

the ship.

2. Petitioner argues (Pet. 4-8) that the lower courts

have failed to apply the. Victory Carriers test in a

“consistent manner.” Pet. 4. That is incorrect. The

results reached in the cases relied upon by petitioner

are attributable to the varying facts in those cases

rather than any actual doctrinal division on the proper

application of the factors discussed in Victory Carriers.

In addition, none of the lower court decisions cited by

petitioner calls into question the result reached by the

court of appeals in applying the settled jurisdictional

principles discussed above to the admittedly atypical

facts of this case.

a. For example, in the cargo-related cases cited by

petitioner (Pet. 5-7), the courts generally declined to

apply admiralty jurisdiction to pier-side accidents

caused by a defect in, or the negligent operation of,

shore-based equipment, or by an appurtenance that was

not being used for the ship’s typical purposes. See

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

(1st Cir. 1975) (injury to longshoreman who tripped and

fell over plywood dunnage that had been removed from

a ship and spread over railroad tracks to unload cargo);

Davis v. W. Bruns & Co., 476 F.2d 246 (5th Cir. 1973)

(injury to longshoreman caused by a land-based con-

veyor belt used to unload bananas from a ship); Mas-

cuilli v. American Exp. Isbrandtsen Lines, Inc., 381 F.

Supp. 770 (E.D. Pa. 1974) (injury to longshoreman

caused by lumber dunnage that had slipped from a fork-

lift operated by longshoreman’s co-worker, where dun-

nage had been deposited on land and unbanded before

being moved by the forklift), aff'd, 511 F.2d 1394 (3d

Cir.), cert. denied, 423 U.S. 834 (1975).'

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

1984), is consistent with the cargo-related cases discussed above.

There, a construction worker claimed that his injury, sustained

while unloading an air compressor from a truck, was caused by

defective crating attributable to a shipowner’s negligence. Jd. at

767-768. The court declined to apply admiralty jurisdiction on the

ground that the injury had insufficient connection to traditional

maritime activities, as the injury occurred far from the port some

seven days after the compressor had been unloaded from a ship.

Id. at 768-769. Because Crotwell was decided on the basis of the

The lone case cited by petitioner (Pet. 5) that found

admiralty jurisdiction in a cargo-unloading injury situa-

tion is consistent with Victory Carriers. In Garrett v.

Gutzeit, 491 F.2d 228 (4th Cir. 1974), a longshoreman

was injured when wire bands used to wrap bales of

cargo broke and the cargo fell on him. In holding that

the case was within admiralty jurisdiction, the court

explained that “(t]he instrumentality of the injury was

a ship’s cargo container (the wire bands around the

bales)” and that “(cJargo containers coming from a

vessel’s hold satisfy the appurtenance requirement of

Victory Carriers.” Id. at 232. Indeed, as the Garrett

court observed, in Victory Carriers this Court itself

recognized that “defective cargo containers being un-

loaded from a ship located on navigable waters” may

be an appurtenance to the vessel and thus establish

admiralty jurisdiction. 404 U.S. at 210 (discussing

Gutierrez, supra).?

Moreover, to the extent that there is any incon-

sistency in the results in the cargo cases cited by peti-

tioner in determining whether an item is an appurte-

nance to a vessel under Victory Carriers, this case—

which does not involve a cargo fact pattern—would be

connection test, it is not inconsistent with cases that focus on the

location test.

2 Petitioner claims (Pet. 6) that the Garrett court “noted the

confusion concerning the right to recover under maritime law and

the restrictions that apply to maritime jurisdiction.” The confusion

that Garrett noted, however, pertains to the warranty of seawor-

thiness and is not relevant to the present case. See Garrett, 491

F.2d at 231 (“There appears to be no little confusion concerning

restrictions upon the right to recover under maritime law. This

confusion is attributable, in great measure, to the fact that the

scope of admiralty jurisdiction is not always equal to the breadth of

the seaworthiness warranty.”).

-10

an inapt vehicle for clarifying the circumstances in

which admiralty jurisdiction attaches in that context.

b. Nor does the decision below conflict with Scott v.

Trump Indiana, Inc., 337 F.3d 939 (7th Cir. 2003). In

Scott, a life raft was launched from a casino ship for

inspection. When a land-based crane lifted the life raft

from the water, “a gust of wind caused the [life raft] to

sway” and it hit the plaintiff, who was standing on a

pier. Jd. at 941-942. As the court of appeals explained,

the crane was not an appurtenance to the ship from

which the life raft was launched; the “crane was a com-

pletely land-based piece of equipment” and was “never

aboard” the casino ship. Jd. at 944. Although it was a

“closer question,” the court also held that the life raft

was not an appurtenance to the ship, since at the time

of the plaintiff's injury it was not under the control of

the ship’s personnel. Jbid. (citing Victory Carriers, 404

U.S. at 214). More to the point, in so holding, the court

specifically distinguished this case, explaining that,

“Cujnlike the aircraft in Anderson, which was controlled

at all times by personnel aboard the Kennedy, at the

time of Scott’s injury, the life raft was not under the

control of [the ship’s] personnel.” Jbid. (internal cita-

tions omitted).-

c. The remaining decisions cited by petitioner do not

involve the application of\the Victory Carriers test for

an appurtenance because none of the cases involved an

injury on land allegedly caused by an appurtenance to a

vessel, the factual situation that the Victory Carriers

test sought to address. Gowen, Inc. v. F/V Quality

One, 244 F.3d 64 (1st Cir.)/(whether a maritime lien on a

boat covered the boat’s fishing permit), cert. denied,

534 U.S. 886 (2001); Watson v. Massman Constr. Co.,

850 F.2d 219 (5th Cir. 1988) (construction worker fell

from allegedly defective /shore-side equipment into the

Mississippi River); Duluth Superior Excursions, Inc. v.

Makela, 623 F.2d 1251 (8th Cir. 1980) (plaintiff injured

on land by driver who became intoxicated on a cruise

ship); Gonzalez v. M/V-Destiny Panama, 102 F. Supp.

2d 1352 (S.D. Fla. 2000) (whether a maritime lien on a

boat covered its uninstalled replacement engines).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.