Good v. Ohio Edison Co.
| Decision Date | 21 July 1998 |
| Docket Number | Nos. 96-4057,97-3226,s. 96-4057 |
| Citation | 149 F.3d 413 |
| Parties | Kristen M. GOOD, as Co-Administrator WWA of the Estates of Roland W. Good and Judith E. Good, et al., Plaintiffs, v. OHIO EDISON COMPANY, Defendant/Third-Party Plaintiff-Appellant, v. UNITED STATES of America; United States Coast Guard, Third-Party Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alisa T. Wright (argued and briefed), Norman S. Carr (briefed), Roetzel & Andress, Akron, OH, for Defendant/Third-Party Plaintiff-Appellant in No. 96-4057.
Alisa T. Wright (argued and briefed), Norman S. Carr (briefed), Roetzel & Andress, Akron, OH, Charles W. Waterfield, Flynn, Py & Kruse, Sandusky, OH, for Defendant/Third-Party Plaintiff-Appellant in No. 97-3226.
David V. Hutchinson (argued and briefed), Frederick W. Tucher (briefed), U.S. Department of Justice, Civil Division, Torts Branch, Washington, DC, David O. Bauer, Asst. U.S. Attorney, Office of the U.S. Attorney, Western Division, Toledo, OH, for Third-Party Defendants-Appellees in No. 96-4057.
David V. Hutchinson (argued and briefed), Frederick W. Tucher (briefed), U.S. Department of Justice, Civil Division, Torts Branch, Washington, DC, David O. Bauer, Asst. U.S. Attorney, Robert G. Trusiak, Office of the U.S. Attorney, Western Division, Toledo, OH, for Third-Party Defendants-Appellees in No. 97-3226.
Before: BATCHELDER and MOORE, Circuit Judges, and BORMAN, * District Judge.
Ohio Edison Company, the defendant and third-party plaintiff in these now-consolidated personal injury and wrongful death actions, appeals the district court's dismissal for lack of subject matter jurisdiction under the Suits in Admiralty Act (the "SIAA"), 46 U.S.C.App. § 741 et seq., its claim against third-party defendants-appellees the United States of America and the United States Coast Guard (collectively, the "United States") for contribution and/or indemnity. Ohio Edison also appeals the district court's decision not to alter this final judgment in light of newly discovered evidence as permitted under FED. R. CIV. P. 60(b)(2). For the reasons that follow, we affirm the district court's judgment in both cases.
On the evening of August 26, 1995, a pleasure craft traveling through Sandusky Bay collided with the concrete and steel platform base of a transmission tower owned by Ohio Edison. The light 1 (the "Aid") that was supposed to mark this particular pier was extinguished at the time the accident occurred; subsequent inspection by the Coast Guard revealed that the lamp changer was not receiving any power. J.A. at 1779-80 (Anderson Dep. at 33-34); Appellees' Br. at 7. Four passengers died, and the seven others who survived were injured. Four separate actions were commenced by or on behalf of these passengers against Ohio Edison in the Court of Common Pleas of Erie County. 2 In each of these actions, Ohio Edison in turn filed a third-party complaint against the United States based on the SIAA's waiver of sovereign immunity for a government employee's conduct where a private individual would be liable under maritime law for the same actions. 3 J.A. at 89, 94, 108, 113, 124, 129, 142, 147 (Summons against Third-Party). Upon removal to federal court, these actions were consolidated for pre-trial purposes. J.A. at 86, 105, 121, 139 (Notices of Removal).
On February 29, 1996, the United States, asserting a lack of subject matter jurisdiction, filed a motion to dismiss and/or for summary judgment. J.A. at 202 . In response, Ohio Edison filed an initial brief as well as a request pursuant to FED.R.CIV.P. 56(f) to postpone ruling on the motion until additional discovery could be conducted, including the deposing of Coast Guard personnel. J.A. at 226 (), 260 (Rule 56(f) Aff. of Carr), 268 (Def. and Third-Party Pl.'s Brief in Opp'n to Mot. for Summ. J.). The district court allowed for a certain amount of additional discovery, in particular granting the motion to compel the deposition of Captain Barlow who was the chief of the Coast Guard Ninth District's Aids to Navigation branch at the time of the accident. J.A. at 358 (Order issued 4/18/96); 705 (Barlow Dep. at 5). Upon completion of this discovery, Ohio Edison filed a supplemental response to the United States' motion, but again requested that further discovery be permitted before the court make a ruling on the motion. J.A. at 388 (), 545 (Rule 56(f) Aff. of Carr). Despite this request, on July 12, 1996, the district court granted the United States' motion to dismiss and/or for summary judgment based on its finding that the discretionary function exception applied, depriving the court of subject matter jurisdiction. J.A. at 179 (Op. at 9). The district court found, in the alternative, that in light of applicable statutes, federal regulations, Coast Guard standard operating procedures, and a provision in the permit application signed by Ohio Edison, the Coast Guard had delegated any duties to inspect to Ohio Edison who therefore had no right to indemnity or contribution. J.A. at 180 (Op. at 10). Ohio Edison's motion for reconsideration of this decision was denied on August 20, 1996. J.A. at 619 (Rule 59(e) Mot. to Amend J.), 183 (Mem.Op.). On September 9, 1996, Ohio Edison filed an appeal. 4 J.A. at 192 (Notice of Appeal).
After several other witnesses were later deposed, in particular Boatswain Mate Michael Anderson and Joseph Chaykosky, who was the owner and operator of the craft at the time of the accident, Ohio Edison filed a motion for the district court to indicate whether, pursuant to Rule 60(b), it was inclined to alter its prior final judgment 5 in light of this newly discovered evidence of potential relevance to the issue of subject matter jurisdiction. J.A. at 642. The district court declined this invitation on February 25, 1997, concluding that the newly discovered evidence would not alter the court's decision to dismiss. J.A. at 194(Op.). On March 5, 1997, Ohio Edison appealed this decision. 6 J.A. at 198 (Notice of Appeal).
The two above appeals have been consolidated for review before this court. The district court had original jurisdiction over this admiralty and maritime case 7 by virtue of 28 U.S.C. § 1333. The basis of this court's appellate jurisdiction over Appeal No. 96-4057 was confirmed and set forth in an Order filed on January 8, 1997 by this court in which it was concluded that Ohio Edison's prematurely filed notice of appeal ripened upon the subsequent entry of a FED.R.CIV.P. 54(b) certification of the partial judgment as a final, appealable decision. See Good v. Ohio Edison Co., 104 F.3d 93 (6th Cir.1997); J.A. at 639-641 (Dist. Ct. Order and J. Entry). With respect to the district court's denial of Ohio Edison's Rule 60(b) motion to relieve it from a final judgment, such a ruling is directly appealable. See Amernational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir.), cert. denied sub nom. Amernational Indus. v. Electroexportimport, 501 U.S. 1233, 111 S.Ct. 2857, 115 L.Ed.2d 1024 (1991) (citing Peake v. First Nat'l Bank and Trust Co. of Marquette, 717 F.2d 1016, 1020 (6th Cir.1983)); FED.R.CIV.P. 60(b).
As an initial matter, the United States claims that it was improper for the Coast Guard to be named as a party to this action. Ohio Edison does not respond to nor dispute the accuracy of this assertion, and our own analysis leads us to agree with the United States.
The general rule is that a federal administrative agency cannot be sued in its own name unless such suits are specifically authorized by Congress, typically in the form of a "sue-and-be-sued" clause. See Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 96 L.Ed. 534 (1952); Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); Gerritsen v. Consulado General De Mexico, 989 F.2d 340, 343 (9th Cir.1993). However, even if such authorization to sue the Coast Guard did exist, the Supreme Court's analysis in Loeffler with respect to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., suggests that the Coast Guard is nevertheless immune from suit in this case. In Loeffler, the United States Postal Service contended that the waiver of sovereign immunity effected by § 717 of Title VII (including its scope) was exclusive in an action brought under Title VII against the Postal Service and replaced the broader waiver of sovereign immunity effected by the "sue-and-be-sued" clause of the Postal Reorganization Act of 1970, 39 U.S.C. § 401(1). See Loeffler, 486 U.S. at 559, 108 S.Ct. 1965. In rejecting this argument, the Supreme Court announced that a waiver of sovereign immunity in a new cause of action will not be presumed to be exclusive unless such an intention is expressly mandated by Congress. See id. at 561, 108 S.Ct. 1965. As further illustration, the Supreme Court contrasted § 717 of Title VII with the FTCA which does expressly state that "[t]he authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S.C. § 2679(a); see also Loeffler, 486 U.S. at 561-62, 108 S.Ct. 1965.
Like the FTCA, the SIAA also contains a provision expressly indicating "that the waiver of sovereign immunity it effect[§ is] intended also to narrow the waiver of sovereign immunity of entities [already] subject to sue-and-be-sued clauses." Loeffler, 486 U.S. at 562, 108 S.Ct. 1965. The SIAA only allows...
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