FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABDULHALIM A. ALI and MOHAMED No. 13-15145
FAISAL ALI,
Plaintiffs-Appellants, D.C. No.
3:12-cv-00340-
v. NC
ROBERT ROGERS, AKA Bob Rogers
and WILLIAM BARTLETT, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge
Argued and Submitted
February 10, 2015—San Francisco, California
Filed March 19, 2015
Before: Mary M. Schroeder, Senior Circuit Judge, Barry G.
Silverman, Circuit Judge, and Marvin J. Garbis, Senior
District Judge.*
Opinion by Judge Silverman
*
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2 ALI V. ROGERS
SUMMARY**
Admiralty Law
The panel affirmed the dismissal for lack of jurisdiction
of a civil rights action brought by two Yemeni-born Muslim
seamen.
The first seaman’s claims concerned conduct aboard a
tanker ship owned by the United States Maritime
Administration, an agency of the federal government, but
operated by a private company under a contract. The panel
held that the conduct complained of had such a sufficient
maritime connection that the seaman’s complaint included at
least one claim that could have been brought as a “civil action
in admiralty” against the private wrongdoers, and therefore,
pursuant to the Suits in Admiralty Act and the Public Vessels
Act, should have been brought against the United States. The
panel held that these statutes, which are analogous to the
Federal Tort Claims Act, waive the government’s sovereign
immunity in admiralty actions involving U.S. government-
owned vessels, and in doing so provide the exclusive remedy
for such actions.
The second seaman alleged that he was not hired to work
aboard the ship because of his religion and national origin,
violating both his constitutional rights and his union’s
collective bargaining agreement with the company. The
panel held that because the seaman could have brought suit in
admiralty for breach of the collective bargaining agreement
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALI V. ROGERS 3
related to the crewing of the U.S.-owned vessel, his exclusive
remedy was against the United States.
COUNSEL
Arnold I. Berschler (argued), Berschler Associates P.C., San
Francisco, California, for Plaintiffs-Appellants.
Eric Kaufman-Cohen (argued), Trial Attorney, Civil
Division/Torts Branch, United States Department of Justice,
San Francisco, California, for Defendant-Appellee.
OPINION
SILVERMAN, Circuit Judge:
Abdulhalim Ali was a seaman aboard a tanker ship owned
by the United States Maritime Administration, an agency of
the federal government, but operated by a private company
under a contract. At all material times, the ship was in
navigable water. Ali alleges that the human resources
director of the company operating the ship ordered the ship’s
captain to fire him because he is of Yemeni origin. Ali
brought a civil rights lawsuit naming as defendants the H.R.
director and the captain of the ship, but not the United States.
We hold today, as the district court did, that the conduct
complained of had such a sufficient maritime connection that
the plaintiff’s complaint includes at least one claim that could
have been brought as a “civil action in admiralty” against the
private wrongdoers, and therefore, pursuant to the Suits in
Admiralty Act and the Public Vessels Act, should have been
brought against the United States. These statutes, which are
4 ALI V. ROGERS
analogous to the Federal Torts Claim Act, waive the
government’s sovereign immunity in admiralty actions
involving U.S. government-owned vessels, and in doing so
provide the exclusive remedy for such actions. Because
Abdulhalim Ali sued the H.R. director, rather than the United
States, his complaint was properly dismissed for lack of
jurisdiction. (The captain was never served.)
Mohamed Ali alleges that the day after Abdulhalim Ali
was fired, he (Mohamed) was present in the hiring hall of the
Seafarers International Union and saw a listing for a job
aboard the same government-owned ship from which
Abdulhalim Ali was fired. Mohamed Ali alleges that he was
not hired on the orders of the H.R. director because of his
religion and national origin, violating both his constitutional
rights and his union’s collective bargaining agreement with
the company. He named only the H.R. director as a
defendant. We also hold today that because Mohamed Ali
could have brought suit in admiralty for breach of the
collective bargaining agreement relating to the crewing of
this U.S.-owned vessel, his exclusive remedy – including for
his civil rights claims, which he could have alleged as being
closely linked to the putative breach of contract claim – was
against the United States. Therefore, his complaint, too, was
properly dismissed for lack of jurisdiction.
I. Background
In reviewing an order dismissing a case for failure to state
a claim, we “take as true all factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s
favor.” Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.
2011).
ALI V. ROGERS 5
Plaintiffs Abdulhalim Ali and Mohamed Faisal Ali
alleged the following: They are both Yemen-born Muslims
who are now United States citizens. Both belong to the
Seafarers International Union. In January 2010, Abdulhalim
Ali was on the crew of the SS PETERSBURG, a vessel
owned by the United States Maritime Administration, an
agency of the United States Department of Transportation.
Interocean American Shipping Corporation had contracted
with the United States to provide civilian personnel to operate
the PETERSBURG. Interocean also has a collective
bargaining agreement with the union, under which
Abdulhalim Ali was employed on the PETERSBURG.
Robert Rogers is a Vice President of Interocean and
Director of its human resources department. On January 23,
2010, Rogers, “acting under color of law,” ordered the
captain of the PETERSBURG, William Bartlett, to terminate
the employment of anyone on the ship “who appeared to be
of Yemanese [sic] origin and/or of Arabic descent and/or a
follower of Islam.” In compliance with that order, Captain
Bartlett fired Abdulhalim Ali and ordered him to leave the
ship, which was in navigable waters, and Ali left. The
following day, Mohamed Ali, who was in the union hiring
hall in Oakland, California, saw a listing for a position on the
PETERSBURG. His seniority in the union ranks meant that
he had first choice of jobs, and he applied for the position.
However, Rogers directed that Ali should not be hired, and
that the job should instead be given “to another union
member who was apparently not of Yemanese [sic] origin,
Arabic descent and/or a follower of Islam.”
Abdulhalim Ali and Mohamed Ali sued Rogers exactly
two years after the date on which Abdulhalim Ali’s
employment was terminated, each bringing claims under
6 ALI V. ROGERS
42 U.S.C. §§ 1981 and 1983. Abdulhalim Ali described his
claims as being for “Wrongful Termination -
Discrimination,” while Mohamed Ali’s claims were for
“Discrimination in Contracting” and “Discrimination in
Hiring.” The district court dismissed the complaint for lack
of subject matter jurisdiction. Noting that there was no
dispute that the PETERSBURG is a “public vessel owned by
the United States . . . [and] operated by Interocean” as the
United States’ agent, the district court concluded that the
plaintiffs were required, by the terms of both the Clarification
Act, 50 App. U.S.C. § 1291, and the Suits in Admiralty Act
(“SIAA”), 46 U.S.C. §§ 30901 et seq., to sue only the United
States for admiralty claims. The district court concluded that
both plaintiffs’ claims satisfied the location and nexus tests
for admiralty jurisdiction, so since the claims were filed
against Rogers, rather than the United States, the district court
dismissed the complaint with prejudice.
Abdulhalim Ali and Mohamed Ali now appeal. We have
jurisdiction under 28 U.S.C. § 1291 to review the district
court’s final decision.
II. Discussion
A. Standard of Review
We review de novo a district court’s order dismissing a
case for lack of subject matter jurisdiction. Gruver v. Lesman
Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007).
B. Statutory Framework
The SIAA waives sovereign immunity for the United
States in cases where “a civil action in admiralty could be
ALI V. ROGERS 7
maintained” against a private person in the same situation.
46 U.S.C. § 30903(a).1 That is, if a vessel is owned by the
United States, and someone is harmed by the vessel or one of
its employees, and the harm is one for which, if the vessel
were privately owned, the harmed individual could have sued
its owner in admiralty, then the person can bring – indeed,
must bring – that admiralty claim against the United States.
Id.; see Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995,
996 (9th Cir. 1997) (through the SIAA, government is subject
to “the same liability . . . as is imposed by the admiralty law
on the private shipowner”). This makes the SIAA “the
maritime analog to the FTCA.” Huber v. United States,
838 F.2d 398, 400 (9th Cir. 1988). In plain terms, the SIAA
applies when (1) a vessel is owned by the United States or
operated on its behalf, and (2) there is a remedy cognizable in
admiralty for the injury. See Williams v. Central Gulf Lines,
874 F.2d 1058, 1061–62 (5th Cir. 1989) (framing SIAA
inquiry in two parts: first, whether the vessel is owned by
United States or an agent, and second, whether the claim
stated is a “traditional admiralty claim”). The SIAA provides
no cause of action; it just waives sovereign immunity where
1
46 U.S.C. § 30903(a) provides in full:
(a) In general.—In a case in which, if a vessel were
privately owned or operated, or if cargo were privately
owned or possessed, or if a private person or property
were involved, a civil action in admiralty could be
maintained, a civil action in admiralty in personam may
be brought against the United States or a
federally-owned corporation. In a civil action in
admiralty brought by the United States or a
federally-owned corporation, an admiralty claim in
personam may be filed or a setoff claimed against the
United States or corporation.
8 ALI V. ROGERS
an admiralty remedy is available. Dearborn, 113 F.3d at 996
n.1.
The SIAA has a two-year statute of limitations. 46 U.S.C.
§ 30905. Further, any remedy available under the SIAA 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. 46 U.S.C.
§ 30904.2 That is, “where a remedy lies against the United
States, a suit against an agent of the United States ‘by reason
of the same subject matter’ is precluded.” Dearborn, 113 F.3d
at 997. As the Fifth Circuit has explained, “a remedy is
provided” within the meaning of the SIAA when, “one, the
underlying maritime law would permit the seaman to state the
same claim against a private party, and two, the United States
has waived its sovereign immunity with respect to that
claim.” Martin v. Miller, 65 F.3d 434, 442 (5th Cir. 1995).
Moreover, the remedy available against the United States
need not be the same as that available against a private party
for this provision to apply. See id. at n.4. After an extensive
review of the legislative history and case law surrounding the
SIAA, the Fourth Circuit explained that the exclusivity
provision’s language was intended to enshrine a Supreme
Court case holding that the SIAA “furnish[es] the exclusive
remedy in admiralty against the United States . . . on all
maritime causes of action arising out of the possession or
operation” of vessels. Manuel v. United States, 50 F.3d 1253,
2
46 U.S.C. § 30904 provides in full:
If 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.
ALI V. ROGERS 9
1257 (4th Cir. 1995) (quoting Johnson v. U.S. Shipping Bd.
Emergency Fleet Corp., 280 U.S. 320, 327 (1930), overruled
in part on other grounds by Brady v. Roosevelt Steamship
Co., 317 U.S. 575, 578 (1943)). The Fourth Circuit
acknowledged that this may lead to a “harsh result” in some
cases, because of the resulting lack of certain remedies for
seamen, but explained that the exclusivity language “clearly
dictates this result.” Id. at 1260.
Also relevant to this case is another statutory waiver of
federal sovereign immunity in the admiralty context, the
Public Vessels Act (“PVA”). 46 U.S.C. §§ 31101 et seq. The
PVA applies to “civil action[s] in personam in admiralty . . .
for damages caused by a public vessel of the United States.”
46 U.S.C. § 31102(a)(1). Claims under the PVA have certain
limitations that SIAA claims do not, but none that are
relevant here. More importantly, the PVA makes all claims
subject to the SIAA, including its statute of limitations and its
exclusivity provision, except to the extent to which the two
are inconsistent. 46 U.S.C. § 31103; see also Dearborn,
113 F.3d at 996–97 (noting that the SIAA’s exclusivity rule
is incorporated by reference into the PVA). Though some
circuits interpret the term “damages” caused by a public
vessel narrowly (i.e., as encompassing only physical injuries),
we recently reaffirmed that the PVA includes claims arising
out of the conduct of employees on a public vessel, not
merely direct physical damages. See Tobar v. United States,
639 F.3d 1191, 1198 (9th Cir. 2011). And despite expansive
revisions to the SIAA, the Supreme Court continues to rule
that any suit for damages caused by a public vessel falls
under the PVA; under Tobar and predecessor cases, those
damages will include contract damages. Id. Any other
admiralty claim against a federally-owned vessel will fall
10 ALI V. ROGERS
under the SIAA. United States v. United Cont’l Tuna Corp.,
425 U.S. 164, 181 (1976).3
C. Admiralty Jurisdiction
The Constitution’s grant of federal jurisdiction for
admiralty, “codified at 28 U.S.C. § 1333(1), allows the filing
of claims related to maritime contracts and maritime torts.”
In re Mission Bay Jet Sports, LLC, 570 F.3d 1124, 1126 (9th
Cir. 2009). Over time, courts have developed tests for both
types of claim that determine whether a claim has sufficient
“maritime flavor” that a litigant may properly invoke federal
admiralty jurisdiction. See Owens-Illinois, Inc. v. U.S. Dist.
Court for W. Dist. of Washington, at Tacoma, 698 F.2d 967,
969–70 (9th Cir. 1983); David J. Bederman, Admiralty
Jurisdiction, 31 J. Mar. L. & Com. 189, 206 (2000) (tracing
development and contours of admiralty jurisdiction).
1. Tort
Tort claims may sound in admiralty jurisdiction if they
satisfy a test with three components showing that the claim
has the requisite maritime flavor. Christensen v. Georgia-
3
Rogers argues that a third admiralty statute, the Clarification Act,
applies to Abdulhalim’s claims because he was employed on a vessel
owned by the federal Maritime Administration. 50 App. U.S.C. § 1291(a).
But this statute only covers claims for “death, injuries, illness,
maintenance and cure, loss of effects, detention, or repatriation, or claims
arising therefrom,” as well as claims for “collection of wages and bonuses
and making of allotments,” requiring such claims to first go through an
administrative exhaustion process and then, if they are administratively
disallowed, be brought under the SIAA. Id. We cannot agree that
Abdulhalim’s claims are for the type of harms specifically covered by the
Clarification Act.
ALI V. ROGERS 11
Pac. Corp., 279 F.3d 807, 814 (9th Cir. 2002). The relevant
tort or harm must have (1) taken place on navigable water (or
a vessel on navigable water having caused an injury on land),
(2) “a potentially disruptive impact on maritime commerce,”
and (3) a “substantial relationship to traditional maritime
activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 534 (1995). We look at a tort
claim’s general features, rather than at its minute particulars,
to assess whether there is the requisite connection; thus, for
instance, when a crane on a river barge flooded a tunnel, the
Supreme Court spoke of “damage by a vessel in navigable
water to an underwater structure,” and when two girls were
thrown off a Sea-Doo into San Diego’s Mission Bay, the
Ninth Circuit described the incident as “harm by a vessel in
navigable waters to a passenger.” Id. at 539; Mission Bay Jet
Sports, 570 F.3d at 1129.
2. Contract
As with torts, in determining whether there is admiralty
jurisdiction over a given contract, the court’s task is to
determine whether it is adequately maritime in nature.
Federal courts have admiralty jurisdiction over a contract “if
its subject matter is maritime.” La Reunion Francaise SA v.
Barnes, 247 F.3d 1022, 1024 (9th Cir. 2001) (quoting Royal
Ins. Co. of America v. Pier 39 Ltd., 738 F.2d 1035, 1036 (9th
Cir. 1984)). The answer to the question of whether a given
contract is a “maritime” contract “ ‘depends upon . . . the
nature and character of the contract,’ and the true criterion is
whether it has ‘reference to maritime service or maritime
transactions.’” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 24
(2004) (quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. &
Shipbuilding Co., 249 U.S. 119, 125 (1919)). Of particular
relevance to this case, it is well settled that “a contract for
12 ALI V. ROGERS
hire either of a ship or of the sailors and officers to man her
is within the admiralty jurisdiction.” Kossick v. United Fruit
Co., 365 U.S. 731, 735 (1961).
D. Plaintiffs’ Claims Are Subject to the Public Vessels
Act and Suits in Admiralty Act
Having outlined the general landscape (or should we say
seascape?) of admiralty jurisdiction and waivers of sovereign
immunity, we consider whether plaintiffs’ claims are
sufficiently maritime in nature that they should have been
brought under the PVA and SIAA rather than against Rogers.
As noted, it is undisputed that the PETERSBURG is a
“public vessel of the United States.” Therefore, assuming
some form of damages is involved, both Abdulhalim Ali and
Mohamed Ali’s claims are subject to the PVA, and through
it the SIAA, if they have claims that can be properly
characterized as “civil action[s] in personam in admiralty.”
46 U.S.C. § 31102.
We hold that Abdulhalim Ali’s allegations against Rogers
establish that his claims have the requisite maritime flavor to
constitute a “civil action in personam in admiralty” and be
subject to the PVA and SIAA. 46 U.S.C. §§ 31102–31103.
Ali alleged that the PETERSBURG’s captain fired him from
the ship’s crew, in violation of the collective bargaining
agreement, while he was aboard the ship, and while the ship
was docked in navigable waters. The district court treated
Ali’s claims as tort claims, noting that Ali’s termination from
the ship’s crew could potentially have disrupted the ship’s
activities because it was then missing a crew member;
furthermore, the activity in which he was engaged, crewing
a ship, is one of the most basic “traditional maritime
ALI V. ROGERS 13
activities” that exists. We need express no opinion as to
whether Ali’s discrimination claims could be considered
admiralty torts. His claims under §§ 1981 and 1983 also
include allegations raising a breach of contract claim. Such
a claim would be indisputably maritime in nature, since Ali’s
contract was for employment to operate the PETERSBURG
on navigable waters. See Kossick, 365 U.S. at 735.
Given that the PETERSBURG is a public vessel, and
Ali’s claims are based on conduct resulting from its
operation, the PVA’s waiver of sovereign immunity is
applicable, and Ali is thus able to sue the United States. But
PVA claims are also generally subject to the SIAA, and the
SIAA’s exclusivity provision precludes any claims arising
from the same facts from being brought against any parties
but the United States. See 46 U.S.C. § 30904. Consequently,
Ali not only could sue the United States, if he wanted any
relief, he was required to do so. See id.; see also Manuel,
50 F.3d at 1259–60. Since Ali’s discrimination claim against
Rogers is “a suit against an agent of the United States ‘by
reason of the same subject matter’ [it] is precluded.”
Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995, 997
(9th Cir. 1997) (quoting 46 U.S.C. § 30904).
Mohamed Ali also pleaded his claims under §§ 1981 and
1983. However, he was neither aboard the PETERSBURG
nor yet hired to work on its crew when Rogers directed that
he not be hired, for allegedly discriminatory reasons.
Therefore, the harm did not take place on navigable waters as
required for admiralty tort jurisdiction. However, Ali alleged
that he was entitled to the benefit of his union’s collective
bargaining agreement and that Rogers breached this contract
by a discriminatory refusal to hire him as a crew member of
the PETERSBURG. Such an agreement plainly will have
14 ALI V. ROGERS
“reference to maritime service or maritime transactions,”
thereby satisfying the “true criterion” for what makes a
maritime contract, and qualifying for admiralty contract
jurisdiction. Norfolk S. Ry. Co., 543 U.S. at 24 (citation
omitted). Although Ali’s portion of the complaint pleaded
claims under §§ 1981 and 1983, he could have brought a
breach of contract claim in admiralty jurisdiction. Such an
action would be “a civil action in admiralty [that] could be
maintained,” so both that claim and his discrimination claims,
which “aris[e] out of the same subject matter” and are closely
linked to the contract claim, are subject to the SIAA’s
exclusivity provision. 46 U.S.C. §§ 30903, 30904.4
Therefore, Ali was required to bring his claims against the
United States, not against Rogers. Since he did not, the
district court rightly concluded that it lacked subject matter
jurisdiction over the claims. In holding that these plaintiffs’
claims are barred by the SIAA, we express no view on the
merits of these claims in admiralty. Our inquiry is a
jurisdictional one only.
III. Conclusion
Neither party has argued that plaintiffs’ discrimination
claims could be brought as admiralty claims; therefore, we
reiterate that we express no opinion on that issue. Rather, we
conclude that because Abdulhalim Ali and Mohamed Ali’s
claims both involved a contract for employment or potential
employment aboard a public vessel of the United States and
have sufficient maritime connection, they were required to
4
Like Abdulhalim’s claim, Mohamed’s claims are subject to the SIAA
by way of the PVA, since contract damages caused by a public vessel are
subject to the PVA. Tobar v. United States, 639 F.3d 1191, 1198 (9th Cir.
2011).
ALI V. ROGERS 15
bring those claims against the United States. Since they sued
Rogers instead, the district court correctly determined that it
lacked subject matter jurisdiction over their claims.5
AFFIRMED.
5
We do not remand with instructions that the district court give leave for
plaintiffs to amend their complaint, because the SIAA’s two-year statute
of limitations has run, 46 U.S.C. § 30905, and the plaintiffs make no
argument that any sort of tolling or relation back applies.