RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2002 FED App. 0023P (6th
File Name: 02a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
|Edna Ayers, Administratrix of the Estate
of Roy L. Hardin, deceased,
United States of America,
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 00-00011--Joseph M. Hood, District Judge.
Argued: September 20, 2001
Decided and Filed: January 17, 2002
Before: NELSON and MOORE, Circuit Judges;
KATZ, District Judge.(*)
ARGUED: Paul A. Casi, II, HOFFMAN &
CASI, Louisville, Kentucky, for Appellant. Debra J. Kossow, UNITED STATES
DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., for Appellee.
ON BRIEF: Paul A. Casi, HOFFMAN & CASI, Louisville, Kentucky,
for Appellant. Debra J. Kossow, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL
DIVISION, Washington, D.C., for Appellee.
DAVID A. KATZ, District
Judge. Plaintiff-Appellant Edna Ayers ("Ayers"), as administratrix of the
estate of Roy L. Hardin ("Hardin"), filed suit under the Suits in Admiralty
Act, 46 U.S.C.App. §§ 741-752 ("SAA") and the Federal Torts Claims
Act, 28 U.S.C. §§ 2671-2680 ("FTCA") against Defendant-Appellee
the United States. Ayers alleged that the negligent operation of Lock and
Dam No. 2 ("Lock No. 2") on the Kentucky River by the U.S. Army Corps of
Engineers ("Corps") led to the drowning death of decedent Hardin, Ayers'
son. The United States filed a motion to dismiss. The district court held
that the action came within its admiralty jurisdiction, was therefore barred
by the statute of limitations, and granted the motion to dismiss. We affirm.
Lock and Dam No.
2, located at mile 31 on the Kentucky River, is owned and operated by the
United States through its agency, the Corps. Lock No. 2 consists of a lock,
to allow vessel passage on the river, and a dam, to maintain a navigable
water level. The area downstream of Lock No. 2, near Lockport, Kentucky,
is a popular swimming area.
On August 3, 1997,
Hardin was swimming approximately one hundred yards from the downstream
discharge area of Lock No. 2, when the lock master began "locking through"
two pleasure craft. "Locking through" the craft entailed opening the downstream
discharge end of Lock No. 2, resulting in turbulence from the sudden and
rapid release of water. Plaintiff alleges that this turbulence pulled Hardin
under the water and caused him to drown. Plaintiff also alleges that the
lock master negligently failed to warn others of his intent to operate
Lock No. 2. Following Hardin's drowning, the two pleasure craft left Lock
No. 2 and proceeded downstream on the Kentucky River without delay.
On June 28, 1999,
Ayers filed an administrative claim for wrongful death with the Corps,
pursuant to the FTCA. On July 19, 1999, an attorney for the Corps acknowledged
receipt of the claim and stated that the matter would be investigated.
On July 29, 1999, Ayers was informed by facsimile letter that the administrative
claim had not been properly filed because it lacked necessary documents
demonstrating authorization to file the claim. The facsimile also stated,
"The claim has not been properly presented and the statute of limitations
continues to run." In response to the Corps' facsimile, that same day Ayers
sent a new administrative claim containing the proper authorization and
recognizing that the six-month period for the United States' response to
the claim would run from the date of the new claim.
There was no final
disposition of Ayers' claim within the prescribed six-month period. On
February 11, 2000, Ayers filed a Complaint in the United States District
Court for the Eastern District of Kentucky. In her Complaint, Ayers alleged
only that her action arose under the FTCA. On June 7, 2000, Ayers filed
an Amended Complaint alleging that her action arose under the FTCA or,
in the alternative, under the SAA.
The United States
filed a motion to dismiss for lack of jurisdiction. The district court,
applying Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527 (1995), held that Ayers' action was before the court pursuant
to its admiralty jurisdiction under the SAA and that the suit was untimely
due to Ayers' failure to file her complaint within the two-year period
allowed by 46 U.S.C.App. § 745. The district court also rejected Ayers'
argument that the SAA's limitations period was subject to equitable tolling.
The district court granted the motion to dismiss, and Ayers' appeal to
this court followed. In her appeal, Ayers claims that her action was timely
brought under the FTCA, or, in the alternative, that equitable tolling
of the SAA's limitations period is appropriate based on her filing of an
administrative complaint coupled with representations allegedly made by
Corps attorneys concerning the tolling of the statute of limitations.
II. Standard of Review
"A district court's
dismissal of claims for lack of subject matter jurisdiction is reviewed
de novo on appeal." Good v. Ohio Edison Co., 149 F.3d 413, 418 (6th
Cir. 1998) (citing Kruse v. Village of Chagrin Falls, Ohio, 74 F.3d
694, 697 (6th Cir. 1996), cert. denied, 519 U.S. 818 (1996)).
(A) Admiralty Jurisdiction
"Claims for which
a remedy is available under [SAA] are not cognizable under FTCA." Pearce
v. United States, 261 F.3d 643, 647 (6th Cir. 2001) (quoting Estate
of Callas v. United States, 682 F.2d 613, 619 n.7 (7th Cir. 1982));
46 U.S.C.App. § 740. "The [SAA] permits suits in admiralty against
the United States '[i]n cases where . . . if a private person or property
were involved, a proceeding in admiralty could be maintained.'" Pearce,
261 F.3d at 647 (quoting Faust v. South Carolina State Highway Dep't,
721 F.2d 934, 938 n.2 (4th Cir. 1983)).
Prior to 1972, the
existence of admiralty jurisdiction was determined by the locality test.
Where "the wrong occurred on navigable waters, the action was within admiralty
jurisdiction; if the wrong occurred on land, it [wa]s not." Executive
Jet Aviation v. City of Cleveland, 409 U.S. 249, 253 (1972). In Executive
Jet, the Court held that a determination of admiralty jurisdiction
required inquiry into the "relationship of the wrong to traditional maritime
activity." Id. at 261. Later in
Foremost Ins. Co. v. Richardson,
457 U.S. 668 (1982), the Court stressed that admiralty jurisdiction existed
only where the tort "had a significant connection with traditional maritime
activity." Id. at 674. The Foremost Court found that the
"significant connection" requirement was satisfied by "[t]he potential
disruptive impact of a collision between boats on navigable waters, when
coupled with the traditional concern that admiralty holds for navigation,"
id. at 675, despite the fact that neither of the vessels involved
in the Foremost collision was engaged in commercial activity. Thereafter,
in Sisson v. Ruby, 497 U.S. 358 (1990), the Court held that maritime
jurisdiction was appropriate when a potential hazard to maritime commerce
arises out of an activity that bears a substantial relationship to traditional
maritime activity. See id. at 363-367.
The Supreme Court
most recently addressed admiralty jurisdiction in Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995). In
Grubart, the Court held that admiralty jurisdiction existed over
claims concerning flooding of buildings in downtown Chicago; the flooding
had allegedly resulted after a crane situated on a barge on the Chicago
River was used to drive piles into the riverbed above a tunnel. See
id. at 529. The Grubart Court applied the
and stated that "[A] party seeking to invoke federal admiralty jurisdiction
. . . over a tort claim must satisfy conditions both of location and of
connection with maritime activity." Id. at 534.
To determine if the
location requirement has been satisfied, a court examining jurisdiction
"must determine whether the tort occurred on navigable water or whether
injury suffered on land was caused by a vessel on navigable water." Id.
Where there is some dispute as to the causation of an injury, a court may
look to general tort principles of "proximate cause." Id. at 536-37.
The "connection test"
requires a two-part inquiry. First, the court is required to "'assess the
general features of the type of incident involved' to determine whether
the incident has 'a potentially disruptive impact on maritime commerce.'"
Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S. at 363,
364 n.2) (internal citations omitted). This assessment must be made by
means of "a description of the incident at an intermediate level of possible
generality." Grubart, 513 U.S. at 538. Having characterized the
incident, we are then required to ask "whether the incident could be seen
within a class of incidents that posed more than a fanciful risk to commercial
shipping." Id. at 539.
To satisfy the second
prong of the "connection test," the court "must determine whether 'the
general character' of the 'activity giving rise to the incident' shows
a 'substantial relationship to traditional maritime activity.'" Grubart,
513 U.S. at 534 (quoting Sisson, 497 U.S. at 365, 364 and n.2)).
That is, the court "ask[s] whether a tortfeasor's activity, commercial
or noncommercial, on navigable waters is so closely related to activity
traditionally subject to admiralty law that the reasons for applying special
admiralty rules would apply in the suit at hand." Grubart, 513 U.S.
at 539-40. We apply Grubart below.
(B) The Location Requirement
The parties do not
dispute that the portion of the Kentucky River in which Hardin was swimming
when he drowned constitutes a navigable waterway, nor do they dispute that
the lock master was "locking through" two pleasure craft just prior to
Hardin's accident. Appellant argues, however, that these facts are insufficient
to satisfy the location requirement for a number of reasons.
that the SAA requires that a vessel be involved in the commission of the
tort. The SAA provides, in pertinent part, "In cases where if such vessel
were privately owned or operated, or if such cargo were privately owned
or possessed, or if a private person or property were involved, a proceeding
in admiralty could be maintained. . . ." 46 U.S.C.App. § 742. The
plain language of the statute states that only "private person or property"
is necessary, so long as an action in admiralty might otherwise be maintained.
Appellant's argument is therefore without merit.
Appellant also contends
that because the lockmaster was on land when he activated the mechanism
to release the water from the lock, this case should be characterized as
a land-based tort that has caused injury on a navigable waterway. In effect,
Appellant is asking this court to entertain an argument similar to that
advanced in Executive Jet, in which the Supreme Court "refused to
enter into a debate over whether the tort occurred where the plane had
crashed and been destroyed (the navigable waters of Lake Erie) or where
it had struck the sea gulls (over land)." Sisson, 497 U.S. at 361
(citing Executive Jet, 409 U.S. at 266-67). To engage in such a
debate here would be to apply too mechanical an application of the locality
test, something that the Supreme Court has recognized as neither "sensible"
nor "consonant with the purposes of maritime law." Grubart, 513
U.S. at 533 (quoting Executive Jet, 409 U.S. at 261).
Finally, we note
that Appellant's continued assertion that no vessel was involved in Hardin's
drowning is disingenuous, at best. Although their connection with Hardin's
drowning is clearly more tenuous than if he had been struck by or had fallen
from one of the craft, Appellant does not dispute that the lockmaster activated
Lock No. 2 to allow passage of two pleasure craft.(1)
It would therefore be unreasonable for Appellant to assert that Hardin's
drowning was entirely unrelated to watercraft.
The locality prong
of the test for admiralty jurisdiction has been satisfied. Not only was
Hardin drowned in navigable waters, but also the instrumentality that Appellant
suggests caused the drowning (Lock No. 2) was located in navigable waters.
(C) The Connection Requirement
In its initial step,
the "connection test" requires that we characterize the circumstances resulting
in Hardin's death with some "intermediate level of generality." Here the
incident may appropriately be characterized as a drowning which occurred
a short distance downstream from a lock on navigable waters. So characterized,
it is clear that there was some potential effect on maritime commerce.
Barring immediate recovery of the deceased, a drowning requires vessels
to engage in some rescue and recovery effort, and if such an effort were
to occur immediately downstream from a lock, then some not-insignificant
interruption of commercial activity might result. This potential interruption
is sufficient to satisfy the first part of the "connection test."(2)
The second enquiry
in the "connection test" requires examination of whether the tortfeasor's
activity was substantially related to traditional maritime activity. See
Grubart, 513 U.S. at 539. There can be no reasonable dispute that the
operation of a lock is a traditional maritime activity. See, e.g., Marine
Transit Corp. v. Dreyfus, 284 U.S. 263 (1932) (vessel sank while approaching
a lock); The Montello, 87 U.S. 430 (1874) (recognizing that locks,
dams, and canals allow navigation of otherwise unnavigable waters).
Both the location
and connection requirements for admiralty jurisdiction are present in this
case. The district court was therefore correct in its determination that
the exclusive remedy for Appellant's complaint is governed by the SAA.
(D) Statute of Limitations
Actions under the
SAA are subject to a two-year statute of limitations. 46 U.S.C.App. §
745. Failure to bring an action under the SAA within two years following
the occurrence of an injury will deprive federal courts of jurisdiction
to hear the action. See McMahon v. United States, 342 U.S. 25 (1951);
States Marine Corp. of Delaware v. United States, 283 F.2d 776,
778 (2d Cir. 1960). Appellant's Complaint alleges that Hardin drowned on
August 3, 1997. The Complaint was filed on February 11, 2000, and amended
to include claims under the SAA on June 7, 2000. Appellant's claim falls
outside the two-year limitations period and is therefore barred.
(E) Equitable Tolling
that in the event admiralty jurisdiction exists, the United States should
be barred from asserting a statute of limitations defense by operation
of equitable tolling. She contends that tolling is appropriate both because
the United States affirmatively represented that the administrative claim
filed pursuant to her FTCA action tolled the statute of limitations and
because her failure to timely file an admiralty action was not caused by
"garden variety neglect," but instead resulted because her claim involved
an issue of admiralty jurisdiction that was one of first impression in
allows an action to proceed despite its having been brought outside the
statute of limitations when there exist exceptional circumstances that
have prevented timely filing of the action through no fault of the Plaintiff.
See Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).
Although equitable tolling may be applied in suits against the government,
courts will only do so "sparingly," and not when there has only been "a
garden variety claim of excusable neglect." Irwin v. Department of Veterans'
Affairs, 498 U.S. 89, 96 (1990).
that equitable tolling should be applied because she was misled by the
United States' representations is without merit. It is well-established
that the filing of an administrative claim under the FTCA will not toll
the limitations period for an action under the SAA. See McMahon,
342, U.S. at 27; see also Bovell v. United States Dep't of Defense,
735 F.2d 755, 757 (3d Cir. 1984). Furthermore, there is no allegation that
a representative of the United States ever misled Appellant as to her admiralty
claim. In her brief to this Court, the Appellant states, "The first time
admiralty jurisdiction was raised and the two-year statute of limitations
was asserted as a defense was in response to the Appellant's Complaint."
(Appellant's Brief at 28).
that she should be excused from the consequences of her untimely filing
because the existence of admiralty jurisdiction in this case was an unsettled
issue is also not well-taken. Diligent research was likely to have revealed
not only the existence of a possible claim under the SAA, but also that
the limitations period for that action would most likely not be tolled
by the filing of Appellant's administrative claim. Had Appellant any doubt
as to whether her action was properly brought under the FTCA or the SAA,
she was free to include in her initial complaint requests for relief under
both statutes. Fed. R. Civ. P. 8(a). Contrary to the suggestion of Appellant
at oral argument, such alternative pleadings are not disfavored.
The district court's
decision not to allow equitable tolling of the SAA's statute of limitations
was correct and will be affirmed.
For the foregoing
reasons, we hold that the Appellant's suit is barred due to her failure
to file within two years of the alleged tortious activity as required by
the Suits in Admiralty Act. The decision of the district court granting
the motion to dismiss is AFFIRMED.
*The Honorable David A. Katz, United States District
Judge for the Northern District of Ohio, sitting by designation.
1 Appellant even states that such is the case in her
Amended Complaint: "Such negligence included but was not necessarily limited
to the sudden and rapid release of a large volume of water while transporting
vessels through such Lock No. 2." (Apx. at 50).
2 In her brief, Appellant gives numerous reasons why
the drowning did not result in any interruption of maritime commercial
activity. The points raised by the Appellant are not relevant, however,
because the test considers not what commercial disruption resulted, but
what potential for disruption existed. See Grubart, 513 U.S.