The United States now claims that the Complaint should be dismissed based on three independent grounds: (1) the Complaint was filed before plaintiff received an administrative disallowance of his claim; (2) the claim was incomplete and improperly filed; and (3) the statute of limitations under the SAA has run.
The United States is a sovereign nation which has consented to be sued pursuant to the terms and conditions of the Public Vessels Act, 46 U.S.C. §§ 781-790, which incorporates by reference the terms and conditions of the SAA; and pursuant to the terms and conditions of the Clarification Act, 50 U.S.C. app. § 1291 and 46 C.F.R. Part 327 (the "Act"). (Def.'s 3(g) Statement P 4).
The Act allows seamen employed on vessels owned, operated or chartered by the United States to recover for injuries as if they were employed on privately-owned American vessels. 50 U.S.C. app. § 1291(a); McMahon v. United States, 342 U.S. 25, 26, 96 L. Ed. 26, 72 S. Ct. 17 (1951). As a jurisdictional prerequisite for bringing suit under the Act, however, the claimant first must file an administrative claim with MARAD. 46 C.F.R. § 327.3 ("All claims specified in 50 U.S.C. app. 1291(a)(2) and (3) . . . shall be submitted for administrative consideration . . . prior to institution of court action thereon."); see also 46 C.F.R. § 327.8 ("No seamen . . . shall institute a court action for the enforcement of such claim unless such claim shall have been prepared and filed in accordance with [the regulations] and shall have been administratively disallowed . . . ."). The Act provides in relevant part that such claims, "if administratively disallowed in whole or in part, be enforced pursuant to the provisions of the Suits in Admiralty Act. . . . When used in this subsection the term 'administratively disallowed' means a denial of a written claim in accordance with rules or regulations prescribed by the Administrator, War Shipping Administration. " 50 U.S.C. app. § 1291(a) (emphasis added).
As the above-quoted provision indicates, merely filing an administrative claim does not allow the plaintiff to bring suit in federal district court; rather, MARAD first must administratively disallow the claim. Here, even assuming plaintiff's April 7, 1993 letter was an effective administrative claim, plaintiff waited until April 7 to file the claim, even though he was instructed to do so on September 24, 1992.
Plaintiff instituted the present action on April 22, 1993. MARAD notified plaintiff on April 29, 1993 that the claim was lacking certain information needed to perfect the administrative claim. (Gribbin Affirm. Ex. G). This lawsuit therefore was filed prematurely because MARAD had not yet disallowed plaintiff's claim, nor had 60 days passed from the date of its filing.
This court is not persuaded by plaintiff's argument -- advanced with the concession that it "does not fit altogether neatly within the language" of the statute and the regulations -- that where a seaman has attempted to comply with the requirements of the statute, and where MARAD has had sufficient time "prior to the expiration of the period of limitations at least to conditionally disallow the injured seamen's claim, it should be held that such refusal of express disallowance by the Administration constitutes effectively a 'disallowance'. . . ." (Matthews Affirm. P 15) (emphasis in original). As the government points out, 46 C.F.R. § 327.7 already provides a presumption of disallowance after 60 days from the date of filing the claim. Moreover, it is axiomatic that "statutes which waive immunity of the United States from suit are to be construed strictly in favor of the sovereign," McMahon, 342 U.S. at 27, and this court declines to overlook plaintiff's clear procedural defaults here. This court also rejects plaintiff's argument that the Complaint was filed as a "protective action." As the Ninth Circuit held in expressly rejecting the "protective lawsuit theory" in analogous circumstances, "the Clarification Act unmistakably prohibits [the plaintiff] from filing a claim in federal court before obtaining an administrative disallowance." Smith v. United States, 873 F.2d 218, 220-21 (9th Cir. 1989).
Accordingly, because plaintiff filed his suit prematurely, this court lacks subject matter jurisdiction over plaintiff's claim. See Raible v. Interocean Management Corp., 1992 U.S. Dist. LEXIS 12208 (E.D. La. Aug. 11, 1992) (suit filed prior to administrative disallowance dismissed; "judicial economy does not trump procedural prerequisites"); Erickson v. Standard Oil Co. of Cal., 1987 U.S. Dist. LEXIS 11660 (E.D. La. Dec. 8, 1987) ("It is uncontested . . . that plaintiff failed to await an administration [sic] disallowance . . . prior to commencing this suit . . . . this court is therefore without jurisdiction in this matter.").
Plaintiff's claim must be dismissed on the alternative ground that he failed to comply with the regulations governing claim requirements. The required contents of a properly filed claim are described in detail in 46 C.F.R. § 327.4(b). As MARAD advised plaintiff in its letter of April 29, 1993 -- and as plaintiff indeed admits -- plaintiff has failed to provide much of this information. In addition, plaintiff failed to file the claim in accordance with the regulations; 46 C.F.R. § 327.5(b) directs claimants to file with the Ship Manager or General Agent -- in this case, APL -- and to send a copy directly to MARAD. Plaintiff neglected to file his April 7, 1993 letter with APL; in fact, APL only received a copy after MARAD forwarded the letter by facsimile. (Gribbin Affirm. Ex. E & F).
Since, as discussed above, suits brought against the United States in admiralty must be brought in strict conformity with the SAA, McMahon, 342 U.S. at 27, and "the terms of [the United States's] consent to be sued in any court define that court's jurisdiction to entertain the suit," United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941), plaintiff's failure to strictly comply with the regulations also requires that his action be dismissed.
Finally, the United States argues that the statute of limitations has run on plaintiff's cause of action. Section 745 of the SAA provides a two-year limitations period for actions brought under the Act; the limitations period begins to run from the date of the alleged injury. 46 U.S.C. § 745; McMahon, 342 U.S. at 27. Because in this case the limitations period began to run on May 1, 1991 -- the date of plaintiff's alleged injury -- his cause of action was extinguished on May 1, 1993. States Marine Corp. of Del. v. United States, 283 F.2d 776, 778 (2d Cir. 1960) ("The time-bar of the Suits in Admiralty Act renders a claim against the United States not only unenforceable, but extinguishes the claim itself . . . .).
Congress did not address the scope or availability of equitable tolling for late claims under the SAA, but the majority of courts considering the issue have declined to toll the limitations period under the SAA. E.g., Szyka v. United States Secretary of Defense, 525 F.2d 62, 65 (2d Cir. 1975); Raziano v. United States, 999 F.2d 1539, 1541 (11th Cir. 1993); Smith v. United States, 873 F.2d 218, 221-22 (9th Cir. 1989). The Fifth Circuit has stated that
In general, a court may toll the SAA's limitations period if doing so would not defeat the statute's legislative purpose, which is to encourage parties with claims against the government to present their claims promptly and diligently, or if injustice to the plaintiff would result.