Anderson v. U.S.

• Decision Date: 03 June 2002
• Docket Number: No. 3:01-CV-422-J-21-HTS.,3:01-CV-422-J-21-HTS.
• Citation: 245 F.Supp.2d 1217
• Parties: Gary L. ANDERSON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Florida

245 F.Supp.2d 1217

Gary L. ANDERSON, Plaintiff, v. UNITED STATES of America, Defendant.

No. 3:01-CV-422-J-21-HTS.

United States District Court, M.D. Florida, Jacksonville Division.

June 3, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen B. Gallagher, Marks, Gray, P.A., Jacksonville, FL, for Plaintiff.

Reginald Luster, U.S. Attorney's Office, Jacksonville, FL, Gregg A. Cervi, U.S. Department of Justice, Gregory P. Belanger, U.S. Department of Justice, Washington, DC, for Defendant.

ORDER

NIMMONS, District Judge.

Filed herein is Defendant's Motion to Dismiss (Dkt. 4), Plaintiffs response in opposition thereto (Dkt. 7), and Defendant's reply (Dkt. 16).

I. GENERAL BACKGROUND

In this matter, Plaintiff, Gary L. Anderson¹, 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 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. Plaintiffs 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 III 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 Plaintiffs work site; and (3) as a result of such breach, Plaintiff suffered physical and mental injuries. (Dkt. 1). 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 Plaintiffs lawsuit because Plaintiff did not comply with pre-suit requirements.

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

Because this Motion to Dismiss is before the Court under Rule 12(b)(1), the Plaintiffs 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 (5th 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 (5th 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. 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 to 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, 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).

[4-6] 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.

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 Plaintiffs 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...