Burger v. Amer Maritime Offcr ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-31106
Summary Calendar
_____________________
VOYD B. BURGER,
Plaintiff-Appellant,
versus
AMERICAN MARITIME OFFICERS UNION, ET AL.,
Defendant,
BAY SHIP MANAGEMENT, INC.;
AVONDALE INDUSTRIES, INC.,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana
Civil Action No. 98-2085-T
_________________________________________________________________
May 10, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Voyd Burger has filed a series of suits pro se1 related to his
firing in 1995. He appeals the dismissal of one of those suits
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
It appears that while Burger had the assistance of counsel at
one point in this litigation, he has conducted most of the legal
activity, including this appeal, by himself.
here. For the reasons stated herein, we affirm in part, vacate in
part, and remand.
I
In early 1995, Burger was the chief officer of the U.S.N.S.
Bellatrix. Bay Ship Management, Inc. operated this ship under a
contract with the U.S. Navy, which owned the Bellatrix. In March
of that year, while the Bellatrix was docked at Avondale
Industries’ shipyard in Avondale, Louisiana, Captain Richard
Martucci fired Burger. Burger filed a grievance with the American
Maritime Officers Union, but the union declined to take his
grievance to arbitration.
On February 20, 1996, Burger filed his first suit against Bay
Ship Management and Avondale, among others, in United States
District Court for the Northern District of Florida. That court
dismissed the suit without prejudice for lack of jurisdiction.
Burger appealed, and the Eleventh Circuit eventually upheld the
dismissal.
While the appeal of his first suit was pending, however,
Burger filed a second suit based on the same claims in United
States District Court for the Eastern District of Louisiana. He
raised a host of claims, including RICO and ADEA violations,
improper and retaliatory discharge, fraud, and conspiracy. Bay
Ship Management and Avondale moved to dismiss based on the first-
2
to-file rule. The district court granted their motion and
dismissed Burger’s claims with prejudice. Burger appealed to the
Fifth Circuit.
While that appeal was pending, Burger filed his third suit
against the defendants, also in the Eastern District of Louisiana.
Bay Ship Management filed another motion to dismiss, based on the
first-to-file rule and res judicata. The district court presiding
over that suit granted their motion.
Soon thereafter, we ruled on Burger’s appeal of the dismissal
of his second suit. We held that dismissal with prejudice on
first-to-file grounds had been improper because the Florida court
had lacked jurisdiction. We therefore remanded the case for
further proceedings.
On February 8, 1999, the district court presiding over the
second suit ordered all parties to file answers or pleadings within
thirty days. Avondale filed a timely motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), which the district court
granted on April 15, 1999. Bay Ship Management then filed for
summary judgment on the various claims. The district court granted
that motion in late August. Then, on September 2, 1999, the
district court entered its order dismissing the complaint with
prejudice. Burger filed a motion for reconsideration, and while it
3
was pending, filed his notice of appeal. The district court
ultimately denied his motion. We now hear his appeal.
In the meantime, however, Burger filed yet another suit on
January 19, 2000, again in the Eastern District of Louisiana. We
are not aware of the status of that suit.
II
A
Burger first argues that his claims against Avondale were
improperly dismissed because he did not have an opportunity to
conduct discovery or to amend his complaint.2 Because the district
court did not deny either a motion to compel discovery or a motion
to amend his complaint, Burger is apparently challenging the
district court’s alacrity in responding to Avondale’s motion to
dismiss.
There is nothing in the record suggesting that Burger sought
and was denied discovery because the claims against Avondale were
decided at the pleadings stage on a 12(b)(6) motion. Discovery had
not begun. Nor would discovery have helped Burger, because
additional evidence would not have affected whether his complaint
stated a cognizable claim against Avondale.
2
The only discovery that Burger mentions is to see the
contract between Avondale and Bay Ship Management. Burger raises
this request for additional discovery twice, first in the section
of his brief titled “Issue 1,” and then later in the section titled
“Issue 2.”
4
As for an opportunity to amend his complaint, we point out
that Burger had two months to amend his complaint from the date the
case was remanded to the district court. He had one month after
Avondale filed its motion to dismiss. Burger never tried to amend
his complaint during this two-month period, however.
We decline to reverse a district court because it responded to
a motion too promptly. Relief with respect to the Avondale claims
is therefore denied.3
3
One part of Burger’s brief states:
It is Burger’s position that the district court did not
apply the law properly because it ignored the facts.
Burger contends that Avondale was required by contract to
be used and paid by Avondale Shipyard for on-call time
spent standing by to perform work for their benefit.
Likewise, Burger believes that had they been forced to
provide the Court with that contract it would prove this
assertion. Burger submitted contracts Avondale had with
other MSC ships that were in dry dock, showing that
Avondale had to provide and pay for any labor used, and
that Avondale was required to use the crew of the
BELLATRIX to run ships gear, and assist the shipyard in
whatever work they required help by the ship’s crew.
To the extent that Burger is raising an issue other than his
inability to conduct discovery, we cannot discern what it is. He
has neither explained what claim these “facts” are relevant to nor
how they suggest that the district court was wrong to dismiss his
case against Avondale for failure to state a claim.
Similarly, in the last section of his brief, Burger asserts
that the district court erroneously found that if he was an
Avondale employee, he was an “at-will” employee, allowing the firm
to fire him without cause. Burger’s argument appears to be that
the district court ignored evidence establishing that Avondale paid
him for work he did for Avondale. He then contends that this
evidence demonstrates something other than an “at-will”
relationship with Avondale. We disagree. Burger needed to allege
5
B
Burger next challenges the district court’s decision to grant
Bay Ship Management’s summary judgment motion for lack of subject
matter jurisdiction. The district court held that Burger’s claims
were governed by the Public Vessels Act, 46 U.S.C. § 781-790. This
Act incorporates the exclusivity provision of the Suits in
Admiralty Act, 46 U.S.C. § 741-752. Section 745 provides that the
United States is the proper defendant when there is a remedy
provided against the United States, and that an action cannot be
brought against the agent or employee of the United States whose
acts or omissions allegedly gave rise to the claim. Because
Burger’s suit arose from his employment onboard a U.S.-owned vessel
operated by an agent of the United States, Bay Ship Management, his
only remedy was under the Suits in Admiralty Act against the United
States. For these reasons, the district court dismissed his claims
on summary judgment.
Burger’s argument on appeal is that Bay Ship Management is not
an agent of the United States, but is instead an independent
contractor. Burger points out that Bay Ship Management had day-to-
day control over the ship and its personnel. But under existing
case law, this is not a necessary condition to agency. In Dearborn
the existence of an employment contract between himself and
Avondale, which he has failed to do.
6
v. Mar Ship Operations, Inc., 113 F.3d 995, 998-99 (9th Cir. 1997),
a Ninth Circuit panel held that where the government exerts
significant overall control and direction, and where the ship was
to be used for government purposes in support of government
missions, a charterer with day-to-day control and authority to hire
and fire was still an agent. After an examination of the contract
between Bay Ship Management and the Navy, it is clear that the
government maintained the same level of overall control, and that
the ship was to be used for government purposes in support of
government missions. Thus, Bay Ship Management was an agent,
depriving the district court of jurisdiction.
We do agree, however, with Burger’s argument that granting
summary judgment is an inappropriate way to effect a dismissal for
lack of subject matter jurisdiction. Bank One Texas v. United
States, 157 F.3d 397, 403 n.12 (5th Cir. 1998)(citing Stanley v.
Central Intelligence Agency, 639 F.2d 1146, 1157 (5th Cir. 1981)).
For that reason, the district court’s summary judgment is vacated
and the case will be dismissed for lack of jurisdiction.
C
The heading of the last section of Burger’s brief reads:
WHETHER SIAA OR PVA PROVIDES A CAUSE OF ACTION
THEMSELVES, PRE-EMPTS THE FAIR LABOR AND STANDARDS ACT,
OR ADEA, OR MERELY OPERATES AS A WAIVER OF SOVEREIGN
IMMUNITY?
7
Unfortunately, he fails to make any argument to this effect in the
text that follows that heading. Thus, we will not address this
issue.
IV
For the reasons stated herein, the district court’s decision
is AFFIRMED in part, VACATED in part, and DISMISSED in part.
AFFIRMED in part; VACATED in part; and DISMISSED in part.
8