Ryan v. U.S.

• Citation: 304 F.Supp.2d 678
• Decision Date: 12 May 2003
• Docket Number: No. CIV. AMD 02-2335.,CIV. AMD 02-2335.
• Parties: Patrick C. RYAN, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Maryland

304 F.Supp.2d 678

Patrick C. RYAN, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. CIV. AMD 02-2335.

United States District Court, D. Maryland.

May 12, 2003.

Robert M. Schwartzman, Lord and Whip PA, Baltimore, MD, for Plaintiff.

Robert B. Hetherington, McCarthy Wilson, Rockville, MD, Robert H. Bouse, Jr., Anderson Coe and King LLP, David W. Skeen, Stephen F. White, Wright, Constable and Skeen LLP, Baltimore, MD, for Defendant.

MEMORANDUM

DAVIS, District Judge.

Plaintiff, Patrick C. Ryan, an employee of a firm working on a government contract at the United States Naval Air Station in Southern Maryland, was severely injured in an on-the-job accident. He filed this one count action for damages against the following parties: (1) the United States of America and the Department of the Navy ("the government"); (2) his employer, Chesapeake Bay Diving, Inc. ("Chesapeake"); (3) Noesis, Inc.; (4) General Dynamics Corporation ("General Dynamics"); and (5)American Systems Corporation ("ASC"). Ryan relies on a plethora of statutory and common law theories sounding in negligence under the Suits in Admiralty Act ("SAA"), 46 App. U.S.C. §§ 741-52; the Public Vessels Act ("PVA"), 46 App. U.S.C. §§ 781-90; the Jones Act, 46 U.S.C. § 688; the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 905(b) and 933; the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80; and state law.

Now pending are the government's motions to dismiss, or in the alternative, for summary judgment, seeking dismissal of Ryan's amended complaint (and other defendants' cross-claims against the government) for lack of subject matter jurisdiction. I conducted a hearing on May 9, 2003, and I have fully considered all of the parties' arguments and evidentiary materials. For the reasons set forth herein, I find that the United States has not waived its sovereign immunity as to any claim asserted against it in this case and thus I shall grant the government's motion to dismiss.

I.

At the time of his accident, on July 15, 2000, Ryan was a seaman who was employed by Chesapeake as a diver and member of the crew of a diving boat owned and/or operated by Chesapeake. Ryan, who also claims to be a "borrowed servant" of Noesis and perhaps of other defendants, alleges that the pier on which he was injured while performing duties within the scope of his employment was "owned, operated, leased, and/or controlled by the [government]."

At all times relevant to the events in suit, the General Services Administration ("GSA") had a contract with ASC pursuant to which ASC undertook to provide maintenance and technical engineering support for federal government agencies, including the Patuxent River Naval Air Station (through the Department of the Navy), for a period of five years from 1997 to 2002. It seems to be largely undisputed that, in respect to its contractual duties, ASC was an independent contractor and not "an agent or employee of the Government." According to the contract, ASC agreed to "guarantee[ ] the satisfactory completion of the IT [(information technology)] Professional Services performed under the task order and that all contract personnel utilized in the performance of IT Professional Services under the task order shall have the education, experience, and expertise as stated in the task order."

In early 2000, the Navy requested ASC's services for "information technology (IT) test and evaluation (T & E) support" under the GSA contract. The delivery order contained a "Statement of Work" that required ASC "to maintain the government facilities, including the pier and synchrolift,¹ at the Patuxent River Naval Air Station for the period of time from January 24, 2000, through September 30, 2000." Under the order, ASC was required to provide "integrated logistics support including oversight and coordination related to the operation, maintenance, and access of government facilities, ... and grounds; custodial duties; and as required, use government vehicles, forklift, overhead crane, and synchrolift." ASC was also required to report emergency situations involving the facilities and property. The government alleges that the "delivery order [further] delegated to [ASC] the manner of accomplishing the maintenance and technical assistance." ASC had a separate contract with the government to serve as a "property manager" with responsibilities to maintain the Naval Station site. At around this same time, defendant General Dynamics had a separate contract with the government in respect to a new amphibious assault vehicle. In turn, apparently, General Dynamics had subcontracts with Chesapeake and/or with Noesis for the performance of certain tasks.

Ryan was employed by Chesapeake as a diver, however, on the day of his accident, he was not performing tasks as a diver for Chesapeake. Rather, he alleges that on the day of his accident, he "had been directed to use a tow tractor [weighing more than ten thousand pounds] to assist in cleaning the pier area in preparation for a visit by the Commandant of the United States Marine Corps." In other words, it appears, Noesis, who had the responsibility to clean up the pier for a visit by a high-ranking military officer, was utilizing Ryan as an alleged "borrowed servant" (i.e., borrowed from Chesapeake) at the time of Ryan's accident. Ryan attests generally that he "was performing work on orders from above, which apparently came from the Marine Corps, to clean the pier for a visit by a high-ranking officer in the Marine Corps." Ryan further alleges that the "pier's wooden decks collapsed under the tractor's weight" when he attempted to drive the tractor onto the syncrolift to turn around on the pier. When the wooden deck collapsed, the tractor fell through an opening of in the pier into the water and Ryan's lower leg was partially amputated. Ryan has received substantial benefits under worker's compensation laws, and seeks in this action to fasten liability for his accident upon such parties as may be amenable to the imposition of liability in this third party tort action.

II.

The determination of jurisdiction is a threshold issue; the plaintiff in an action has the burden of proving that subject matter jurisdiction exists. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.") (internal quotations omitted) (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)); Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995); Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991); McKeel v. United States, 178 F.Supp.2d 493, 496 (D.Md.2001). When the government challenges the court's subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), "the plaintiff bears the burden of persuasion and must demonstrate an unequivocal waiver of sovereign immunity." McKeel, 178 F.Supp.2d at 496 (citing Williams, 50 F.3d at 304). In ruling on a rule 12(b)(1) motion, "the court is free to consider and to weigh evidence outside of the pleadings to determine its power to hear the case." Id. A district court should grant a Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, Fredericksburg & Potomac R. Co., 945 F.2d at 768 (citing Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987)).

Moreover, "a waiver of the Government's sovereign immunity will be strictly construed, in terms of scope, in favor of the sovereign." Williams v. United States, 242 F.3d 169, 172 (4th Cir.2001) (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)); see Ammer v. United States, 881 F.Supp. 1007, 1010 (D.Md.1994) ("[T]he terms of [the government's] consent to be sued in any court define that court's jurisdiction to entertain the suit.") (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Specifically, Ryan alleges federal jurisdiction under the FTCA, SAA, and PVA. Although the FTCA usually provides a waiver of sovereign immunity in tort actions against the government, the FTCA is expressly inapplicable as to an admiralty claim. 28 U.S.C. § 2680(d). Admiralty claims against the United States are cognizable under the SAA, 46 App. U.S.C. §§ 741-52, and the PVA, 46 App. U.S.C. §§ 781-90.

III.

"The authority of federal courts to hear cases in admiralty stems directly from the [United States] Constitution, which extends federal judicial power `to all Cases of admiralty and maritime Jurisdiction.'" White v. United States, 53 F.3d 43, 45 (4th Cir.1995) (quoting U.S. Const. art. III, § 2); see Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). "Congress has codified this power, vesting in the federal district courts original and exclusive jurisdiction over `[a]ny civil case of admiralty or maritime jurisdiction.'" White, 53 F.3d at 45 (quoting 28 U.S.C. § 1333(1)).

The applicable test as to whether a tort claim lies within the admiralty jurisdiction is two-pronged, that is, the plaintiff must satisfy two conditions, namely, (1) location and (2) "connection with maritime activity." Grubart, 513 U.S. at 532, 115 S.Ct. 1043; Sisson v. Ruby, 497 U.S. 358, 362, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990); David Wright Charter Serv., Inc. v. Wright, 925 F.2d 783, 784 (4th Cir.1991); Foster v. Peddicord, 826 F.2d 1370, 1374 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 766 (1988). To satisfy the location test, the tort must occur on navigable waters, or, if the injury is suffered on land, at least be caused by a vessel on navigable water. White, 53 F.3d at 45 (citing Grubart,...