Opinion
Civil No. 00-CV-1458-L(JFS).
January 21, 2005
ORDER GRANTING WITH PREJUDICE DEFENDANT'S MOTION TO DISMISS [doc. #42] and DIRECTING ENTRY OF JUDGMENT
Defendant United States of America moves to dismiss the above-captioned case for lack of subject matter jurisdiction. The motion has been fully briefed and the Court finds this matter suitable for determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of an action based upon lack of subject matter jurisdiction. In reviewing a Rule 12(b)(1) motion, the court takes the allegations in the plaintiff's complaint as true. Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 944-45 (9th Cir. 1999). Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6), however, the moving party may submit evidence supporting its position that the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b) (1, 6). Thus, when considering a motion to dismiss under Rule 12(b)(1), a court is not restricted to the face of the pleadings but may review any evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (citations omitted) ("For motions to dismiss under Rule 12(b)(1), unlike a motion under Rule 12(b)(6), the moving party may submit affidavits or any other evidence properly before the court. . . . It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. The district court obviously does not abuse its discretion by looking to this extra-pleading material in deciding the issue, even if it becomes necessary to resolve factual disputes."). But where the motion to dismiss asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction, consideration of the motion does not require additional evidence to resolve a factual dispute.
In this case, defendant bases its argument on the insufficiency of the allegations in plaintiff's complaint, i.e., on its face, plaintiff's complaint fails to establish subject matter jurisdiction under the applicable statute. Accordingly, the Court will assume plaintiff's allegations in his complaint to be true and to draw all reasonable inferences in his favor. See FED. R. CIV. P. 12(b)(1); Savage v. Glendale Union High Sch., 343 F.2d 1036, 1039 n. 1 (9th Cir. 2003), cert. denied, 124 S. Ct. 1067, (2004).
Factual Background
The United States Department of the Interior was dredging the "old" Colorado River in the Walters Camp area in February 1998. Plaintiff contends that the dredge crew inadvertently positioned the suction dredge too deep and too close to the concrete river retaining wall and adjoining concrete deck resulting in their collapse.
On April 28, 1998, plaintiff filed a claim against the United States to the Department of Interior under the Federal Tort Claims Act ("FTCA") in the amount of $225,000.00, for property damage sustained to his dock and frontage. Plaintiff's claim was denied on February 22, 2000. (Exh. 3). The agency conducted an investigation and concluded that:
Plaintiff, a licensed attorney, is appearing pro se.
[T]he dredging operations were proceeding in accordance with an established plan. The dredging operations were well within the scope of this plan at the time of the incident. There is no evidence that the dredge suction or cutter head went too deep or swung too wide within the channel at Walter's Camp.
In addition, a survey map of your property at the Walter's Camp area indicates that the water front retaining wall, deck and seawall all extended beyond your property's boundaries, and encroached into the California State owned Colorado River Channel.
(Blaze Declar., Exh. 3, Letter to plaintiff dated February 22, 2000,).
On July 21, 2000, plaintiff filed the above-captioned case alleging the date of loss as February 6, 1998. Defendant filed its Answer on September 27, 2000. This action was stayed from October 29, 2001 until late 2003, so that plaintiff could litigate in state court the legal ownership of the property at the time of the loss.
The Court does not make any finding concerning whether plaintiff was or was not the legal owner of the property at the time of the incident. Accordingly, defendant has not waived plaintiff's lack of ownership as a defense.
Subject Matter Jurisdiction and the Waiver of Sovereign Immunity
A waiver of sovereign immunity is a prerequisite to any action brought against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The present action was filed under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671, et seq. Defendant contends, however, that plaintiff alleges a casualty caused by a public vessel, owned and operated by the United States and that the alleged damage and injury occurred, or was consummated, on land; therefore, the exclusive basis for subject matter jurisdiction is under the Suits in Admiralty Act ("SAA"), in conjunction with the Public Vessels Act ("PVA"), 46 U.S.C. §§ 781 et seq., as extended by the Extension of Admiralty Jurisdiction Act ("EAJA"), 46 U.S.C. § 740. Because plaintiff failed to seek a waiver of sovereign immunity under the SAA and PVA and failed to meet the limitations period under the PVA, defendant contends the action must be dismissed for lack of subject matter jurisdiction.1. Admiralty Action
As noted above, defendant contends that this action falls within the exclusive provisions of the SAA and PVA based on the allegations in the Complaint: plaintiff owned property abutting the Old Colorado River; a dredge owned and operated by the United States caused damage to plaintiff's property by its dredging; and the dredging caused plaintiff's patio and retaining wall on shore to collapse.
To determine whether a claim falls under the Court's admiralty jurisdiction, the United States Supreme Court enunciated two tests addressing the location where the injury occurred and the incident's connection to maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 513, 115 S. Ct. 1043 (1995). Under the location test, a court "must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. . . . [Under the connection test, a] court, first, must "assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Id., 513 U.S. at 534, 115 S. Ct. at 1048 (citations omitted) (internal quotation marks omitted).
Here it is undisputed that plaintiff's property damage injuries are alleged to have been caused by a public vessel and were connected to maritime activity and accordingly, the claim lies within the Court's admiralty jurisdiction.
2. Waiver of Sovereign Immunity
The United States may ordinarily be sued only to the extent that Congress has waived sovereign immunity by enacting a statute consenting to suit. United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351 (1980). The terms of Congress' consent to suit circumscribe the court's jurisdiction and the absence of consent to suit is a jurisdictional defect precluding a court's consideration of the action. Balser v. Dept. of Justice, 327 F.3d 903, 907 (9th Cir. 2003) Therefore, in order to maintain an action against the United States, a plaintiff must allege a statute which constitutes a valid waiver of sovereign immunity. Congress has consented to admiralty jurisdiction over suits involving the United States where those actions fall within the Suits in Admiralty Act or the Public Vessels Act.
The SAA governs suits in admiralty, including those between private parties. 46 U.S.C. §§ 741-752. The PVA applies when suits in admiralty are brought against the United States regarding public vessels. 46 U.S.C. §§ 781-790. The Extension of Admiralty Jurisdiction Act ("EAJA") extends the waiver of immunity contained in the PVA and the SAA for cases where the damage is caused by a vessel and the damage is done or consummated on land but the EAJA is not a waiver of sovereign immunity. 46 U.S.C. § 740.
"In 1960, Congress amended the Suits in Admiralty Act so as to bring all maritime torts asserted against the United States, including those arising under the [Death on the High Seas Act] DOHSA, within the purview of the Suits in Admiralty Act and thus outside the waiver of sovereign immunity in the FTCA." Smith v. United States, 507 U.S. 197, 113 S. Ct. 1178 (1993) (citing United States v. United Continental Tuna Corp., 425 U.S. 164, 176, n. 14, 96 S. Ct. 1319, 1326, n. 14 (1976). Thus, "after the 1960 amendments, admiralty actions that previously would have been brought under the FTCA instead had to be brought under the SIAA — both the SIAA and the FTCA make it clear that the SIAA provides the exclusive remedy for cases falling within its scope." McMellon v. United States, 387 F.3d 329 (4th Cir. 2004) (citing 46 U.S.C.A. § 745 ("[W]here a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter. . . ."); 28 U.S.C.A. § 2680(d) (excluding from the FTCA "[a]ny claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States"). Jurisdiction under the FTCA and the two admiralty statutes is mutually exclusive. 28 U.S.C. § 2680(d). Consequently, a claim against the government in admiralty must be brought under the PVA or SAA, and not under the FTCA. Harrington v. U.S., 748 F. Supp. 919 (D.P.R. 1990).
Plaintiff has proceeded in this action on the basis of jurisdiction under the FTCA; but as discussed above, the FTCA excludes admiralty actions against the United States:
The provisions of this chapter and section 1346(b) of this title shall not apply to — (d) Any claim for which a remedy is provided by sections 741-752, 781-790 of title 46, relating to claims or suits in admiralty against the United States. 28 U.S.C. § 1346, et seq.
When an admiralty action is improperly brought under the FTCA, the case is subject to dismissal for lack of subject matter jurisdiction because the government has not waived sovereign immunity.
Further, because the SAA and the PVA are the sole waivers of sovereign immunity for admiralty actions against the United States, plaintiff must meet the applicable two-year statute of limitations. See 46 U.S.C. app. § 745; Smith v. United States, 873 F.2d 218, 219-20 (9th Cir. 1989); United States v. Williams, 711 F.2d 893, 897 n. 5. The SAA's statute of limitations is jurisdictional, see Smith, 873 F.2d at 221-22 (discussing Williams, 711 F.2d at 899 n. 9), and the two-year period begins to run on the date of injury, not the date on which an administrative claim is disallowed. See McMahon v. United States, 342 U.S. 25, 27 (1951); H-10 Water Taxi Co. v. United States, 379 F.2d 963, 965 (9th Cir. 1967).
Here, plaintiff concedes that he failed to seek a waiver of sovereign immunity under the PVA and did not file his Complaint within the applicable two-year limitations period but contends that his failure should not allow "the government to escape liability for property damages to Plaintiff's real property admittedly caused by governmental employees utilizing a government owned and operated dredge." (Opposition at 1). Although plaintiff filed a timely administrative claim under the FTCA, he failed to file his Complaint under the proper statutory waiver of sovereign immunity and within the applicable two-year limitation period of the PVA.
Plaintiff relies upon Marine Coatings of Alabama, Inc. v. United States of America, 932 F.2d 1370 (11th Circuit 1991) ( "MCA") for the proposition that the waiver found in the FTCA should also serve to waive sovereign immunity in this admiralty action. In MCA, a ship repair subcontractor filed a maritime lien claim based upon a contract between the United States and plaintiff for repair and alternation work on naval vessels. Id. at 1372. The district court found that it lacked subject matter jurisdiction over the claim because plaintiff failed to comply with the Contract Disputes Act ("CDA") even if plaintiff was able to prove it was entitled to a maritime lien and even though the court had jurisdiction under either the SAA and PVA. Id. at 1373-74.
On appeal, the Court noted that the "CDA is only one of many statutes waiving sovereign immunity. The Federal Tort Claims Act, . . . the SAA, and the PVA also waive immunity." Id. at 1377. In reversing the district court, the appellate court held that the CDA does not impose a restrictive limitation on the scope of the SAA's and the PVA's waiver of immunity. Id. The Court stated: "To impose external limits on an express waiver of sovereign immunity would frustrate Congress's purpose in enacting the provisions." Id. Therefore, plaintiff was free to go forward with his action because the "Maritime Lien Act's provisions, coupled with the SAA and PVA read together, offer a means for plaintiffs to sue the government in personam in district court on principles of in rem liability. Though [plaintiff] would be precluded from bringing suit for recovery on the contract unless it complied with the CDA, the CDA does not supersede admiralty provisions providing for another means of recovery." Id. (emphasis in original).
Plaintiff's reliance on MCA is not well founded. Here, the Court is not imposing a limitation on the scope of the waiver of sovereign immunity found in the SAA or the PVA based upon the FTCA. Because the facts of the presents action fall within the Court's admiralty jurisdiction, the waiver of sovereign immunity must come from the SAA or the PVA. The court in MCA does not suggest otherwise.
More significantly, the plaintiff MCA was precluded from going forward with a claim under the CDA because of its failure to comply with the applicable requirements of the CDA. Nevertheless, plaintiff could proceed with his action under the Maritime Lien Act's provisions because when coupled with the SAA and the PVA, plaintiff had a means to sue the government in personam on principles of in rem liability. Here, the FTCA does not offer an alternative waiver of sovereign immunity or an alternative form of relief for plaintiff.
3. Applicability of Equitable Estoppel or Equitable Tolling
Plaintiff also seeks to hold the government accountable, notwithstanding his assertion of his claim under the FTCA and failing to file his Complaint within the limitations period, through the application of equitable estoppel or equitable tolling. Plaintiff contends he was mislead to believe that his claim arose under the FTCA and therefore, the two-year limitations period in the PVA should be subject to equitable tolling. Alternatively, plaintiff argues that the United States should be equitably estopped from asserting the defense of the limitations period.
Plaintiff contends that a program analyst for the Bureau of Reclamation advised plaintiff that he would have to file a claim under the FTCA and provided plaintiff with a Standard Form 95 for that purpose. Later, the Area Manager for the Bureau of Reclamation requested additional information from plaintiff and "[a]t no time did Mr. Bryant indicate that Plaintiff should proceed in any other manner than a Federal Tort Claim and with the Standard Form 95." (Opposition at 3).
In February 2000, a Field Solicitor with the United States Department of the Interior sent plaintiff a letter denying his claim. The letter stated that the "decision to dredge and improve that portion of the channel of river is a discretionary function decision" and was protected by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). (Plaintiff's Declar., Exh. C). Plaintiff was also advised that any submission for reconsideration of the denial should be submitted to her office in accordance with the provisions of the Federal Tort Claims Act. Id.
a. Equitable Tolling
"Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim." Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000). "Unlike equitable estoppel, equitable tolling does not depend on any wrongful conduct by the defendant to prevent the plaintiff from suing. Instead, it focuses on whether there was excusable delay by the plaintiff." Id.
Here, it is undisputed that plaintiff knew of the existence of his claim within the limitations period, and in fact, knew of the existence of his claim from the time his property was damaged. Any information plaintiff may have received from defendant was irrelevant to plaintiff's knowledge of the existence of his claim. Accordingly, equitable tolling is not applicable in the present situation.
b. Equitable Estoppel
"Equitable estoppel focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit. . . ." Santa Maria, 202 F.3d at 1176. When considering whether equitable estoppel is applicable, the Court considers, inter alia, "(1) the plaintiff's actual and reasonable reliance on the defendant's conduct or representations, (2) evidence of improper purpose on the part of the defendant, or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct, and (3) the extent to which the purposes of the limitations period have been satisfied." Id. (citing Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981)). Equitable estoppel "comes into play if the defendant takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the state of limitations. . . . . Equitable estoppel in the limitations setting is sometimes called fraudulent concealment." Santa Maria, 202 F.3d at 1176 ( quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990).
Moreover, the federal government "may not be estopped on the same terms as any other litigant" from insisting on compliance with legal requirements. Heckler v. Community Health Servs., Inc., 467 U.S. 51, 60, 104 S. Ct. 2218, 2224 (1984); see also Schweiker v. Hansen, 450 U.S. 785, 788, 101 S. Ct. 1468 (1981) ( per curiam). Because the federal government's "fiscal operations are so various, and its agencies so numerous and scattered," there is always a risk that misinformed agency employees and representatives may err in interpreting statutes and regulations, and even "the utmost vigilance would not save the public from the most serious losses." Wagner v. FEMA, 847 F.2d 515, 519 (9th Cir. 1988) ( quoting United States v. Kirkpatrick, 22 U.S. (9 Wheat.) 720, 735 (1824)); see Phelps v. FEMA, 785 F.2d 13, 17 (1st Cir. 1986). Additionally, "[t]he government could scarcely function if it were bound by its employees' unauthorized representations." Goldberg v. Weinberger, 546 F.2d 477, 481 (2d Cir. 1976), cert. denied sub nom. Goldberg v. Califano, 431 U.S. 937, 97 S. Ct. 2648 (1977).
The Supreme Court has not held, however, "that there are no cases" in which the public interest behind the government estoppel doctrine "might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government." Community Health Services, 467 U.S. at 60-61, 104 S. Ct. at 2224. The Ninth Circuit has adopted a less absolute but nevertheless stringent test: "A party seeking to raise estoppel against the government must establish `affirmative misconduct going beyond mere negligence'; and "`estoppel will only apply where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.'" Wagner, 847 F.2d at 519 ( quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)); Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986). "A mere failure to inform or assist does not justify application of equitable estoppel." Lavin v. Marsh, 644 F.2d 1378, 1384 (9th Cir. 1981); Santiago v. INS, 526 F.2d 488, 493 (9th Cir. 1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2167 (1976); see also INS v. Hibi, 414 U.S. 5, 8-9, 94 S. Ct. 19, 21-22 (1973) (per curiam).
Here, the record is devoid of any misrepresentations by the United States amounting to "affirmative misconduct." Plaintiffs' failure to file his claim under the SAA and PVA and to file his Complaint within the statute of limitations is based entirely on his own misunderstanding of the law and lack of diligence in determining the applicable law. Thus, there is nothing in the conduct of the United States or its agents that would amount to "affirmative misconduct" falling below "some minimum standard of decency, honor, and reliability." Community Health Services, 467 U.S. at 61, 104 S. Ct. at 2224; see Phelps, 785 F.2d at 18-19 (FEMA agent's advice that claimant need not file a written report was insufficient to estop the government).
The general rule is that "those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law." Community Health Services, 467 U.S. at 62, 104 S. Ct. at 2225.
Conclusion
Based on the foregoing, IT IS ORDERED granting with prejudice defendant's motion to dismiss for lack of subject matter jurisdiction. IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment in accordance with this Order.
IT IS SO ORDERED.