Ammer v. US, Civ. A. No. MJG-93-3795.

• Citation: 881 F. Supp. 1007
• Decision Date: 20 September 1994
• Docket Number: Civ. A. No. MJG-93-3795.
• Parties: Wayne AMMER, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. District Court — District of Maryland

881 F. Supp. 1007

Wayne AMMER, Plaintiff, v. UNITED STATES, Defendant.

Civ. A. No. MJG-93-3795.

United States District Court, D. Maryland.

September 20, 1994.

COPYRIGHT MATERIAL OMITTED

Stephen N. Goldberg, Cohn & Goldberg, Baltimore, MD, for plaintiff.

Judith Bollinger, Asst. U.S. Atty., Baltimore, MD, Richard T. Buckingham, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, for defendant.

MEMORANDUM AND ORDER

GARBIS, District Judge.

The Court has before it Defendant United States' Motion to Dismiss. The Court has considered the legal memoranda submitted by the parties and finds a hearing unnecessary to resolve the motion.

I. INTRODUCTION

According to the Complaint, on May 25, 1991, Plaintiff Wayne Ammer ("Ammer") was allegedly operating a fishing vessel on the Pamlico Sound, in North Carolina, when he was thrown and injured by the wake of a passing U.S. Coast Guard ("USCG") cutter which was proceeding in a negligent manner. Some (unspecified) time after the accident, Ammer's counsel was provided with several copies of Standard Form 95 ("Form 95"), a claims form, by the Coast Guard. The Complaint does not state how his attorney procured the forms, whether he spoke with any legal representatives of the USCG or the United States, or whether any oral or written representations were made concerning his claim.

The back of Form 95 contains the statement that:

A CLAIM SHALL BE DEEMED TO BE PRESENTED WHEN A FEDERAL AGENCY RECEIVES FROM A CLAIMANT, HIS DULY AUTHORIZED AGENT, OR LEGAL REPRESENTATIVE AN EXECUTED STANDARD FORM 95 OR OTHER WRITTEN NOTIFICATION OF AN INCIDENT.... THE CLAIM MUST BE PRESENTED TO THE APPROPRIATE FEDERAL AGENCY WITHIN TWO YEARS AFTER THE CLAIM ACCRUES.

The form also says:

Any instructions or information necessary in the preparation of your claim will be furnished, upon request, by the office indicated in item # 1 on the reverse side. Complete regulations pertaining to claims asserted under the Federal Tort Claims Act can be found in Title 28, Code of Federal Regulations, Part 14. Many agencies have published supplemental regulations also.

(emphasis added). Item 1 of the Forms supplied to Plaintiff's attorney contained the pre-printed address of a U.S. Coast Guard office in New York. The Form contained no reference to the Suits in Admiralty Act ("SAA") or the Public Vessels Act ("PVA").

Ammer's counsel proceeded to submit a completed Form 95 to the Coast Guard on May 13, 1993. Two weeks later, on May 28, 1993, Ammer received a letter from the Coast Guard denying his claim. The Coast Guard Attorney-Advisor's letter further advised Ammer that his claim was covered under the SAA and PVA, rather than the Federal Tort Claims Act ("FTCA"), that any subsequent action should be taken pursuant to those Acts, and that "the filing of this administrative claim has in no way tolled the requisite time period for bringing suit under the SAA or PVA."

Despite this information, and almost six months later, on November 15, 1993, Ammer filed this law suit against the United States for personal injury and property damage under the FTCA, or alternatively, the SAA and PVA. Defendant has filed a motion to dismiss for lack of subject matter jurisdiction, claiming (1) that Ammer's claim is not governed by the FTCA, but falls exclusively under the PVA, (2) that the PVA incorporates the two-year statute of limitations period provided in the SAA, and (3) that Ammer's claim, filed almost six months after the expiration of this period, is time-barred. In response, Plaintiff contends that Defendant should be equitably estopped from denying that the FTCA governs his case.

For reasons discussed below, the Court concludes that the Plaintiff's law suit must be dismissed. The Plaintiff has not alleged facts which, even if proven true, would entitle him to estop the Government from asserting its valid jurisdictional defense.

II. LEGAL STANDARD

The burden a defendant must carry in order to prevail on a Motion to Dismiss is an onerous one. See Fed.R.Civ.P. 12(b). When evaluating a motion to dismiss a complaint, all well-pleaded allegations must be accepted as true and the pleading must be construed in a light most favorable to the plaintiff. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 at 296; § 1357 at 304 (1990). The court should not dismiss the claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Given this standard, to overcome Defendant's jurisdictional defense, Plaintiff must simply allege facts sufficient to justify invocation of the doctrines of equitable tolling or estoppel.

III. DISCUSSION

A. Jurisdiction

Suits against the sovereign require pleading a statute whereby the United States consents to be sued. United States v. Clarke, 33 U.S. (8 Pet.) 436, 443, 8 L.Ed. 1001 (1834). Moreover, "the terms of the government'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, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941). Plaintiff alleges federal jurisdiction under the Federal Tort Claim Act (FTCA), the Suits in Admiralty Act (SAA), and the Public Vessels Act (PVA).

Although the FTCA usually provides a waiver of sovereign immunity in tort actions against the Government, the FTCA is expressly inapplicable where an admiralty claim exists.¹ 28 U.S.C. 2680(d). Admiralty claims against the United States are cognizable under the Suits in Admiralty Act, 46 App. U.S.C. 741-52, and the Public Vessels Act, 46 App. U.S.C. 781-90. These two statutes provide the exclusive source of remedies for maritime torts alleged against the Government. Williams v. United States, 711 F.2d 893 (9th Cir.1983); T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855 (9th Cir.1974); Bovell v. United States, Dept. of Defense, 735 F.2d 755, 756 (3d Cir.1984), Beeler v. United States, 338 F.2d 687, 689 (3d Cir.1964). Given Plaintiff's alleged facts, his claim would be covered under the PVA, which allows suits against the United States for injuries caused by public vessels. 46 App. U.S.C. 781 et seq.

Suits brought under the PVA are subject to and proceed in accordance with the provisions of the SAA, insofar as these provisions are not inconsistent. 46 App. U.S.C. 782. For instance, actions brought under the PVA are subject to the SAA's two-year statute of limitations. Bovell v. United States, Dept. of Defense, 735 F.2d 755, 756 (3d Cir.1984). Moreover, the Supreme Court has construed the SAA statute of limitations as a jurisdictional prerequisite to the waiver of sovereign immunity. McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951). See also T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855, 858 (9th Cir.1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2398, 44 L.Ed.2d 667 (1975); States Marine Corp. of Delaware v. United States, 283 F.2d 776, 779 (2d Cir.1960).

The SAA statute of limitations begins to run from the date of injury. McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951). As Plaintiff alleges that his injuries were caused by an accident on May 25, 1991, the limitations period for his claims would have expired no later than May 25, 1993. Consequently, Plaintiff's complaint against Defendant, filed almost six months after this date, would be time-barred and this Court would lack subject matter jurisdiction unless Plaintiff can demonstrate that the limitations period should be equitably tolled, or that the Government should be equitably estopped from raising a jurisdictional defense.

B. Plaintiff's Contentions

Plaintiff asserts that he reasonably relied, to his detriment, on actions by the Government. He asserts that because the USCG provided his counsel with pre-addressed copies of Form 95 and that Form 95 mentions the FTCA but not the SSA or PVA, and that filing of an administrative claim is required before filing under the FTCA, the Government should not be able to induce a belief that the FTCA is applicable then claim Ammer had filed under the wrong act. In short, Ammer assets that the USCG misled him into believing that by filing the Form 95, "he would be complying with the applicable law ... While the USCG may have had no obligation to give legal advice, including preprinted claim forms with instructions, once it did so, it should be bound by its representations." Memorandum in Opposition to the United States' Motion to Dismiss, at 3-4. Alternatively, Ammer argues that the statute of limitations governing his claim should be equitably tolled because of the Coast Guard's misleading conduct. Finally, Ammer maintains that invocation of equitable principles is justified because the Government has not been prejudiced by the delay, as the USCG conducted an investigation immediately after the incident, and the United States was put on constructive notice by Ammer's timely administrative claim.

C. Equitable Tolling and Estoppel

In Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 234, 79 S.Ct. 760, 762, 3 L.Ed.2d 770, 773 (1959), the Supreme Court stated that:

Where one party has by his representations or conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage.

In light of this general maxim, the Court held that despite the plaintiff's failure to file suit within the relevant limitations period, he would be entitled to have his case tried on the merits "if he can prove that respondent's responsible agents, agents with some authority in the particular matter, conducted themselves in such a way that petitioner was justifiably misled into a good-faith belief that he could begin his action at a...