Kelly v. United States
| Decision Date | 07 January 2022 |
| Docket Number | Case No.: GJH-21-553 |
| Citation | 579 F.Supp.3d 751 |
| Parties | James E. KELLY, Jr., Plaintiff, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
James Richard Jeffcoat, Charles L. Simmons, Jr., Whiteford Taylor & Preston, LLP, Baltimore, MD, Rhett E. King, Pro Hac Vice, Berney L. Strauss, APLC, New Orleans, LA, for Plaintiff.
Richard Henry Miller, III, United States Department of Justice, Washington, DC, for Defendant United States of America.
GEORGE J. HAZEL, United States District Judge In this action, Plaintiff James E. Kelly, Jr., brings admiralty and maritime claims against Defendants United States of America and Tote Services LLC a/k/a Tote Services, Inc. a/k/a Interocean American Shipping Corporation a/k/a Interocean Ugland Management Corporation ("Tote"). ECF No. 1. Now pending before the Court is the Government's Motion to Dismiss for lack of subject-matter jurisdiction. ECF No. 7. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the following reasons, the Government's Motion to Dismiss is granted.
Plaintiff Kelly is a resident of Maryland. ECF No. 1 ¶ 1.2 At all relevant times, he was employed as a seaman and member of the crew of the ANTARES. Id. The ANTARES is a military cargo vessel kept in Baltimore, Maryland. Id. ¶ 2. Defendant Tote operated the vessel pursuant to a contract with the United States. Id. ¶ 1. Defendant Tote is a limited liability company formed under Delaware state laws. Id. ¶ 4.
On or about March 7, 2019, Plaintiff was working aboard the ANTARES when he slipped and fell on an unknown substance that had mixed with leaking water and had made the floor slippery. Id. ¶ 7. The water had leaked from a long-broken head into the passageway near Plaintiff's stateroom. Id. The broken head had existed for years without being fixed and was a hazard to Plaintiff and other seamen. Id. As a result of this fall, Plaintiff sustained severe injuries, including to his neck, thoracic spine, and lower back. Id. ¶ 8. These injuries have required extensive medical and surgical care and could require further care. Id. Plaintiff has suffered pain from the injury. Id. ¶ 9. He has also lost wages and has been prevented from engaging in usual activities. Id. He also claims that he will likely be permanently partially disabled. Id.
On March 3, 2021, Plaintiff filed the Complaint. ECF No. 1. Plaintiff brought claims of negligence under the Jones Act, 46 U.S.C. § 30104, id. ¶ 11, unseaworthiness, id. ¶ 14, and for maintenance and cure benefits, id. ¶ 17. On May 6, 2021, the Government filed the pending Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 7. Plaintiff filed a response in opposition, ECF No. 12, and the Government replied, ECF No. 13.
"It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court." Miller v. Brown , 462 F.3d 312, 316 (4th Cir. 2006) (citation omitted). Once a challenge is made to subject-matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of proving that the Court has subject-matter jurisdiction. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp. , 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond, Fredericksburg & Potomac R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) ); see also Ferdinand-Davenport v. Children's Guild , 742 F. Supp. 2d 772, 777 (D. Md. 2010).
The court should grant a 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans , 166 F.3d at 647 (citation omitted). In a 12(b)(1) motion, the court may consider evidence outside the pleadings to help determine whether it has jurisdiction over the case before it without converting the motion to one for summary judgment, see id. , but the court "must presume that the factual allegations in the complaint are true[,]" Cash v. United States , No. 12-cv-0563-WDQ, 2012 WL 6201123, at *3 (D. Md. Dec. 11, 2012) (citing Khoury v. Meserve , 268 F. Supp. 2d 600, 606 (D. Md. 2003), aff'd , 85 F. App'x 960 (4th Cir. 2004) ).
The Government has moved to dismiss Plaintiff's suit for lack of subject-matter jurisdiction on two grounds. First, the Government argues that the United States is the only proper defendant. ECF No. 7 at 1. Thus, the Government argues that a suit may not be maintained against Defendant Tote. Id. Second, the Government argues that Plaintiff's suit against the United States must be dismissed because Plaintiff has failed to exhaust his administrative remedies. Id.
"The [Suits in Admiralty Act] and the [Public Vessels Act] ... permit admiralty suits to be brought against the United States for causes of action arising out of the operation of vessels owned by or operated for the United States." Manuel v. United States , 50 F.3d 1253, 1255 (4th Cir. 1995).3 "Generally, a ‘suit for damages caused by a public vessel falls under the PVA,’ and all ‘other admiralty claims against a federally-owned vessel ... [fall] under the [SAA].’ " Sys. Application & Techs., Inc. v. United States , 491 F. Supp. 3d 73, 81 n.4 (D. Md. 2020) (quoting Ali v. Rogers , 780 F.3d 1229, 1233 (9th Cir. 2015) ).4
Remedies under the SAA and the PVA are exclusive. Servis v. Hiller Sys. Inc. , 54 F.3d 203, 206 (4th Cir. 1995). As a district court recently noted:
The SAA contains an exclusivity provision that prevents claimants from bringing suit against any defendants other than the federal government. That provision reads, "[i]f a remedy is provided by this chapter, it shall be exclusive of any other action arising out of the same subject matter against the officer, employee, or agent of the United States or the federally-owned corporation whose act or omission gave rise to the claim."
Gale-Ebanks v. Chesapeake Crewing, LLC , 525 F. Supp. 3d 620, 625 (D. Md. 2021) (quoting 46 U.S.C. § 30904 ). "Where the PVA or the SAA provides a remedy against the United States, there is no recourse against the government agentwhose actions engendered the lawsuit." Servis , 54 F.3d at 207. "Any remedy available under the [SAA] is exclusive of any other remedy ‘arising out of the same subject matter’ that the plaintiff might bring against the individual who actually caused the harm at issue." Ali v. Rogers , 780 F.3d 1229, 1233 (9th Cir. 2015) (quoting 46 U.S.C. § 30904 ). A district court lacks subject-matter jurisdiction over SAA or PVA claims not properly brought against the United States. See id. at 1247.
When an admiralty suit under the PVA or the SAA involves a private defendant, the court must determine whether the private party was an "agent" of the United States such that the exclusivity provision applies. Servis , 54 F.3d at 207. "[A] primary factor in determining agency status is the degree of operational control exercised by the United States." Id. at 208 (citing Trautman v. Buck Steber, Inc. , 693 F.2d 440, 445 (5th Cir. 1982) ). "[I]t can reasonably be concluded that the term ‘agent’ as used in the exclusivity provision is synonymous with one who is engaged by the United States to manage and conduct the business of a government vessel." Id. (internal quotations omitted). The Fourth Circuit has drawn a distinction between contractors who perform discrete tasks, such as ship repair work, and the ship operator, who is responsible for management and operations of a United States vessel. Id. at 208. The former "were merely non-agent independent contractors" while the latter is a "general or operating agent" for the United States. Id.
At the relevant time, Tote was the contract operator of the ANTARES, a National Defense Reserve Fleet vessel owned by the United States Maritime Administration ("MARAD").5 See ECF No. 7-2, Exhibit 1 (Naval Vessel Register); Exhibit 2 (Decl.) ¶¶ 6, 7.6 Plaintiff also acknowledges that "Tote was awarded a contract for ship management and services, including operation and maintenance of U.S. vessels, including the U.S.N.S. ANTARES[.]" ECF No. 12 at 3.7
This Court agrees with the Government that Defendant Tote was an agent. Defendant Tote was "engaged" by the United States "to manage and conduct the business of a vessel owned or bareboat chartered by the United States." Servis , 54 F.3d at 209. Tote was thus an agent, and Plaintiff is precluded from suing Defendant Tote. See, e.g. , Manuel , 50 F.3d at 1259 (). The proper defendant is the United States.
"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Manuel , 50 F.3d at 1255 n.1 (citing Williams v. Central Gulf Lines , 874 F.2d 1058, 1059 (5th Cir. 1989) ); Blanco v. United States , 775 F.2d 53, 63 n.8 (2d Cir. 1985).
In addition, suits for "death, injuries, illness, maintenance and cure" brought by seamen "employed on United States [ ] vessels as employees of the United States" are subject to the Clarification Act, 50 U.S.C. § 4701.8 The Clarification Act requires a plaintiff to have first gone through the administrative claims process before filing suit. See 46 C.F.R. § 327.1. The plaintiff must comply with several requirements, 46 C.F.R. § 327.4, and file the claim with MARAD, 46 C.F.R. § 327.5. The claim...
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