* Pursuant to 5 TH C IR . R. 47.5, the Court has determ ined th at this opinio n should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED April 6, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30662

EDMUND LEN, Pl aint iff- Appellant,
versus AMERICAN OVERSEAS MARINE CORPORATION, Defendant-Appellee.

Appeal from the United States District Court fo r the Eastern District of Louisiana

(04-CV-1672)

Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges. CARL E. STEWART, Circuit Judge: * Edm und Len appeals the district court’s dismissal of the suit filed against his emplo yer, American Overseas Marine Corp. (AMSEA), fo r injuries sustained aboard a public vessel. The district court determ

ined that Len’s exclusive remedy was against the United States under the Suits in2

Admiralt y Act of 1920 (SAA), 46 U.S.C. App. §§ 741-52, and the Public Vessels Act (PVA), 46 U.S.C. App. §§ 781-90. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Seaman Edm

und Len injured his hand while cleaning gun barrels aboard the USNS POLLUX
on February 12, 2001. On June 15, 2004, Len filed a complaint against AMSEA, asserting claims fo r negligence under the Jones Act and retal iat ory discharge and/or disabilit y discriminat io n under general marit ime law. Len int entionally did not file suit under the SAA or PVA because he filed suit aft er the SAA two year limit ations period. In January 2005, AMSEA mo ved fo r summary judgment dismissal asserting th at suit against AMSEA is barred because, under the Suits in Admiralt y Act of 1920 (SAA), 46 U.S.C. §§ 741-52, and the Public Vessels Act (PVA), 46 U.S.C. §§ 781-90, Len’s exclusive remedy is against the Unit ed States. On April 26, 2005, Len filed in the federal district court an opposed mo tion to dismiss wit hout prejudice. The memo randum in support of his mo tion states th at Len originally filed suit in Loui siana state district court, but th at court granted AMSEA’s lack of subject mat ter exception. Len then filed the inst ant federal suit and, simult aneously, appealed the state district court’s rul ing. On appeal, the Loui siana district court rul ing was reversed and remanded. In light of the state appellate decision and his desire to proceed only in state court, Len requested dismissal of this federal suit. Aft er examining the contract between AMSEA and the Unit ed States, the federal district court fo und th at there remained no issue of mat erial fact whether AMSEA is an agent of the Unit ed States fo r purposes of 46 U.S.C. § 745 exclusivit y, and concluded th at Len’s sole remedy fo r all his claims is against the Unit ed States. The district court denied Len’s mo tion to dismiss and granted AMSEA’s
mo tion for summary judgment against Len.1 Len does not argue that there remains an issue of mat erial fact about AMSEA’s status as agent

of the United States. 3 Len appeals the federal district court’s summary judgment against him, asserting th at the SAA is only the exclusive remedy “where a remedy is provided by this chapter” and th at it did not provide him a remedy because his claims were time barred when he filed suit. II. STANDARD OF REVIEW We review de novo a district court’s summary judgment rul ing, and apply the same standard ap plicable t o th e district court’s determination: summary judgment is proper “if the pleadings, depositions, answers to int errogatories, and admissions on file, together wit h affidavit s, if any, show th at there is no genuine issue as to any mat erial fact and th at the mo ving party is entitled to judgment
as a mat ter of law.” Fed. R. Civ. P. 56(c); Favorite v. Marine Pers. & Provisioning, Inc. , 955 F.2d 382, 385 (5th Cir. 1992). III. DISCUSSION The parties agree th at the POLLUX is a public vessel of the United States, operated and maint ained by AMSEA. Len does not contend th at the SAA did not apply prior to expiration of the two year period during which SAA actions must be brought, thus it is undisputed that the SAA provided Len a remedy until the end of its two year limit ations period. Similarly undisputed is the status of AMSEA as agent of the Unit ed States. 1 Finally, the marit ime nature of the claims asserted against AMSEA is undisputed, as Len contends that he may still pursue the claims alleged in this
com plaint under the Jones Act and general marit ime law. Len’s argument, as well as the outcom e of this appeal, tur ns on whether the SAA provides a remedy for the maritime claims he has asserted against AMSEA.4

Len essentially asks this court to find th at his SAA remedy against the Unit ed States expired at the end of the two year period during which suit could be brought under § 745 and th at aft er th at time, the SAA provided no remedy to him because he could no lo nger file suit thereunder. Whether
a remedy exists is not defined by the timeliness of a filed com plaint .“[A] ‘remedy is provided’ wit hin the meaning of § 745, and [the com plaint ] must be dismissed if, one, the underl ying marit ime law would permit the seaman to state the same claim against a private party , and two, the Unit ed States has waived it s sovereign immunit y wit h respect to th at claim. Martin v. Miller , 65 F.3d 434, 442 (5th Cir. 1995) (citing Williams v. Cent. Gulf Lines , 874 F.2d 1058, 1061 (5th Cir. 1989). This two part test to determ ine whether § 745 provides a remedy was set fo rth by Williams in reverse order: “[T]he issue of whether a remedy against the Unit ed States is provided by the Suits in Admiralt y Act [entails] a two part inquiry.” Williams v. Cent. Gulf Lines 874 F.2d 1058, 1061 (5th Cir. 1989). Part one i s the “jurisdictional hook” inquiry where we apply the SAA’s statutory language to the present circumstances and ask “whether the Unit ed States has consented to suit given the facts at hand.” I

d. Part two is the “t raditional admiralty claim” inquiry where we ask whether, “when the action arose, principles of marit ime law would have allo wed the appellant to state a claim against a private person in the same position as the Government.” Id. at 1062. “Only by sati sfying this two part test can it be concluded th at a remedy is provided by the Suits in Admiralt y Act so as to justify barring plaintiffs from bringing suit against private entities such as [AMSEA].” Id. at 1061. Here, part one of the Williams test is sati sfied: the Unit ed States has consented to suit via the PVA and SAA fo r the instant factual scenario involving a public vessel operated and maint ained by
an agent of the Unit ed States. Theref ore we now examine “whether [Len] has a claim under2 This is true fo r Len’s claim fo r retal iat ory discharge and disabilit y just as it is fo r his other claims. Cf. Burger v. Bay Ship Mgmt., Inc. , 1999 WL 681386, *1 (E.D. La. Aug. 31, 1999) (unpublished) (finding summary judgment proper where seaman’s claims o f age di scriminat io n, conspiracy, and retal iat ory discharge arose from claim for which PVA and SAA provided a remedy). 5 applicable marit ime law against a private person in the position of the Unit ed States.” Martin , 65 F.3d at 442. Len’s claims arise from a severe injury to his hand th at occurred while he was working wit h
a grinder aboard the POLLUX. A personal injury claim is marit ime in nature “when the alleged wrong (1) occurs on navigable waters and (2) bears a significant relationship to traditional marit ime activit y. ” Favorite , 955 F.2d at 347 (citation om it ted). The traditional role of admiralty has been to furnish remedies for those injured while traveling on navigable waters. Id. If the POLLUX were owned by
a private person inst ead of by the United States, Len would have maritime law claims against the private owner arising from the hand injury he sustained while working aboard the vessel. Moreover, Len’s assertions th at he has viable Jones Act and general marit ime law claims concede th at his claims are maritime in nature. Likewise, his contention that his claims continue to be viable against AMSEA effectively concedes th at, if AMSEA were owner of the vessel, his claims could be brought against a private person in the position of the United States. We find th at part two of the Williams test is sati sfied: Len could state a marit ime claim against a private person in the same position as the Government. Therefore, we conclude that the SAA provides a remedy fo r Len’s cl aims t hat arise from the hand injury that occurred while he worked aboard the POLLUX. 2 2 If the SAA provides a remedy against the Unit ed States then, fo r actions th at arise from the same subject matter, the SAA remedy is exclusive of any action against the agent or employee of the Unit ed States whose act or om issio n gave ri se to the claim. 42 U.S.C. § 745; Doyle6

v. Bethlehem Steel Corp. , 504 F.2d 911, 912 (5th Cir. 1974); see also Tarver v. United States , 785 F. Supp. 607, 612 (S.D. Miss. 1991) (“Because Pan Am was an agent of the government, Tarver has no remedy against Pan Am if the PVA or the SAA provides a remedy against the United States.”). IV. CONCLUSION The claims th at Len filed against AMSEA arise from the same hand injury fo r which the PVA and SAA provide a remedy. It is well settled that, where the SAA provides a remedy, th at remedy is exclusively against the Unit ed States and may not be brought against an agent of the Unit ed States whose acts or om

issio ns gave ri se to the claimed injury. The ju dgment of the district court is AFFIRMED.