[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 13 2000
No. 99-11417 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 98-00313-4-CV-HLM
TOMMY L. HAIRSTON,
EARTH SATELLITE ELECTRONIC
DISTRIBUTORS, INC., d.b.a.
Private Cable Systems,
Plaintiffs-Appellants,
versus
TRAVELERS CASUALTY &
SURETY CO., f.k.a. Aetna Casualty
and Surety, TRAVELERS
PROPERTY CASUALTY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 13, 2000)
Before ANDERSON, Chief Judge, HILL and KRAVITCH, Circuit Judges.
ANDERSON, Chief Judge:
Tommy Hairston and Earth Satellite Electronic Distributors, Inc. appeal the
district court’s dismissal of their suit under a flood insurance policy against Travelers
Casualty & Surety Co. and Travelers Property Casualty. Appellants appeal the district
court’s determination that the federal courts have exclusive jurisdiction over claims
brought pursuant to National Flood Insurance Program (“NFIP”) policies and that
filing in state court did not toll the statute of limitations. We affirm.
I. FACTS
Appellants purchased flood insurance in 1993 from Write Your Own
(“WYO”)1 company Aetna Casualty and Surety, which later merged with or was
purchased by the Appellees. Appellants suffered flood damage in 1995 and
received payment for that damage. Almost two years later, Appellants noticed
further damage which they thought was from the 1995 flood and filed again.
This time, the Appellees would not pay. On November 13, 1997, Appellees
notified the Appellants that no further investigation would be conducted and
1
In 1983, the Federal Emergency Management Agency created the WYO
program whereby private insurers issue National Flood Insurance policies. For a full
explanation of the NFIP history, see Van Holt v. Liberty Mutual Fire Insurance Co.,
163
F.3d 161, 167 (3d Cir. 1998).
2
that the claim was denied. On November 11, 1998, Appellants filed suit in
state court. The Appellees answered, alleging that federal courts have
exclusive jurisdiction of actions arising under NFIP policies and filing for
removal. The removal to federal court occurred on December 15, 1998, more
than a year after appellees denied the claim. After the action was removed to
federal court, the Appellees filed a motion to dismiss because the Appellants
had missed the NFIP’s twelve month statute of limitations. The district court
granted the motion, finding that the federal courts have exclusive jurisdiction and
that filing in state court did not toll the statute of limitations.
II. DISCUSSION
A. Federal Courts Have Exclusive Jurisdiction Over Suits Brought
Pursuant to Policies Issued Under the National Flood Insurance
Program
It is a general principle of law that a state court may assume jurisdiction over
cases arising under federal laws in the absence of “a provision by Congress to the
contrary or disabling incompatibility between the federal claims and state-court
adjudication.” Gulf Offshore Co. v. Mobil Oil Corp.,
453 U.S. 473, 477-478,
101 S.
Ct. 2870, 2875 (1981). Beginning with this presumption that concurrent
jurisdiction exists, courts are to determine whether Congress intended to restrict
3
jurisdiction to the federal court. See
id. at 478,
101 S. Ct. at 2875. This
presumption can be rebutted by a showing of any one of the following: “an explicit
statutory directive,” an “unmistakable implication from legislative history” or “a
clear incompatibility between state-court jurisdiction and federal interests.” Id.
1. Explicit Statutory Directive
We begin with an examination of the language in the statute that the parties
agree is the governing statute. In
42 U.S.C. § 4072,2 the claimant is instructed that
2
Section 4072 provides:
In the event the program is carried out as provided in section 4071 of this title, the
Director shall be authorized to adjust and make payment of any claims for proved
and approved losses covered by flood insurance, and upon the disallowance by the
Director of any such claim, or upon the refusal of the claimant to accept the
amount allowed upon any such claim, the claimant, within one year after the date
of mailing of notice of disallowance or partial disallowance by the Director, may
institute an action against the Director on such claim in the United States district
court for the district in which the insured property or the major part thereof shall
have been situated, and original exclusive jurisdiction is hereby conferred upon
such court to hear and determine such action without regard to the amount in
controversy.
42 U.S.C. § 4072. Both parties agree that § 4072 is the governing statutory provision.
Because it is clear that the district court had subject matter jurisdiction pursuant to
28
U.S.C. § 1331, Newton v. Capital Assur. Co., Inc.,
209 F.3d 1302, 1305 (11th Cir. 2000),
we again need not address the issue of whether
42 U.S.C. § 4072 provides an additional
basis for jurisdiction of a suit against a WYO company, an issue left open in Newton.
See Van Holt v. Liberty Mutual Fire Ins. Co.,
163 F.3d 161, 166-67 (3d Cir. 1998)
(concluding that both
28 U.S.C. § 1331 and
42 U.S.C. § 4072 vest district courts with
subject matter jurisdiction of such suits).
4
he “may institute” an action in the district court and that the district courts are
given “original exclusive jurisdiction” to hear the action without regard to the
amount in controversy.
The Appellants argue that Congress’s use in § 4072 of the permissive “may”
instead of obligatory “must” demonstrates an intention to sustain concurrent
jurisdiction. While it is true that some courts have found concurrent jurisdiction
because of the use of the permissive “may,” see, e.g., Lane v. Central Bank of Ala.,
N.A.,
756 F.2d 814, 817 (11th Cir. 1985), the statutes at issue in such cases did not
contain the more potent language contained in this statute: “original exclusive
jurisdiction.” That difference makes the analysis in those cases inapplicable. In
Yellow Freight Sys., Inc. v. Donnelly,
494 U.S. 820, 823,
110 S.Ct. 1566, 1568-69,
the Supreme Court held that the presumption of concurrent jurisdiction was not
rebutted by the language of Title VII. That language simply said: “each United
States district court ... shall have jurisdiction of actions brought under this
subchapter.” 42 U.S.C. § 2000e-5(f)(3). In so holding, the Court suggested the
kind of language which would rebut the presumption: “Unlike a number of statutes
in which Congress unequivocally stated that the jurisdiction of the federal court is
exclusive, Title VII contains no language that expressly confines jurisdiction to
federal courts.” Id. (footnote omitted). The statutory language in the instant case
5
expressly provides that the jurisdiction of the district court is exclusive.
While Appellants argue that the words “original exclusive jurisdiction” do
not rebut the concurrent jurisdiction presumption, we have not found any cases that
support this view. In fact, the only cases that we have found that interpret this
language held that the language confined jurisdiction to the federal courts. See,
e.g., Mississippi v. Louisiana,
506 U.S. 73, 77-78,
113 S. Ct. 549, 553 (1992)
(examining the constitutional grant of original exclusive jurisdiction to the
Supreme Court of actions between states); Yellow Freight Sys., Inc. v. Donnelly,
494 U.S. 820, 823,
110 S. Ct. 1566, 1568-69 (1990) (contrasting the jurisdictional
language in Civil Rights Act with the ERISA statute which contains the words
“exclusive jurisdiction” and finding that that language in the latter evidenced a
clear rebuttal of the presumption of concurrent jurisdiction); Hall v. United States
Dept. of Veterans’ Affairs,
85 F.3d 532, 534 (11th Cir. 1996)(discussing exclusive
jurisdiction of the Court of Appeals for the Federal Circuit over certain actions for
veterans’ benefits). Therefore we conclude that the language of the statute rebuts
the presumption of concurrent jurisdiction.3
3
At oral argument, Appellants cited American Dredging Co. v. Miller,
510
U.S. 443,
114 S. Ct. 981 (1994), for its discussion of the language in
28 U.S.C. § 1333(1),
the statute that confers jurisdiction in admiralty actions. The statute reads:
The district courts shall have original jurisdiction, exclusive of the courts of the
States, of:
6
2. An Unmistakable Implication From Legislative History
Although we need not address the legislative history in light of the explicit
statutory directive and our holding that the “exclusive” language of the statute
rebuts the presumption of concurrent jurisdiction, our review of the legislative
history reinforces our holding. As originally enacted, § 4072 did not contain the
words “original exclusive” before jurisdiction.4 This language was added by
Congress in 1983. See Supplemental Appropriations Act, 1984; Domestic Housing
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are otherwise entitled.
28 U.S.C. 1331 (1993). The Court discussed its precedent interpreting this language
which held that federal courts had exclusive jurisdiction over in rem suits against vessels
but that the “saving to suitors” clause permitted actions in state court that would be
cognizable under state law. Unlike § 1331(1), § 4072 does not contain an equivalent
“saving to suitors” clause and thus the analysis in American Dredging is not pertinent.
4
The pre-1983 version of § 4072 provided:
In the event the program is carried out as provided in section 4071 of this title, the
Secretary shall be authorized to adjust and make payment of any claims for proved
and approved losses covered by flood insurance, and upon the disallowance by the
Director of any such claim, or upon the refusal of the claimant to accept the
amount allowed upon any such claim, the claimant, within one year after the date
of mailing of notice of disallowance or partial disallowance by the Director, may
institute an action against the Director on such claim in the United States district
court for the district in which the insured property or the major part thereof shall
have been situated, and jurisdiction is hereby conferred upon such court to hear
and determine such action without regard to the amount in controversy.
42 U.S.C. § 4072 (1982) (emphasis added). The 1983 amendment added the words
“original exclusive” immediately before the word “jurisdiction” in the last phrase.
7
and International Recovery and Financial Stability Act, Pub. L. 98-181, §
451(d)(5),
97 Stat. 1229 (1983). In the accompanying legislative history, Congress
made clear that the adoption of the language was purposeful:
In the case where the claimant refuses to accept the amount allowed or
the claim, the claimant may institute an action on the claim against the
company or other insurer within one year after the mailing of the
notice of disallowment or partial disallowment in the U.S. district
court for the district in which the insured property is situated.
Jurisdiction is conferred on the U.S. district court to hear and
determine the action regardless of the amount in controversy. This
section is amended to specify that the U.S. district court has original
exclusive jurisdiction over this action.
See Joint Explanatory Statement of the Committee of Conference, reprinted in
1983 U.S.S.C.A.N. 1768, 1814 (emphasis added). The inclusion of the clear
language restricting jurisdiction to the district court, without any qualifying
statements, demonstrates Congress’s intent to restrict jurisdiction.
The addition of the language in 1983 is especially convincing in light of the
split that had developed in the federal courts about whether jurisdiction over
actions brought pursuant to NFIP policies was confined to federal courts.
Compare Bains v. Hartford Fire Insurance Co.,
440 F. Supp. 15 (N.D. Ga.
1977)(holding that concurrent jurisdiction existed); Burrell v. Turner Corp. of
Oklahoma,
431 F. Supp. 1018 (N.D. Okla. 1977)(same) with Schultz v. Director,
Federal Emergency Management Agency,
477 F. Supp. 118 (C.D. Ill. 1979)
8
(holding the same language in the jurisdictional statute for Part A of the NFIP
restricted jurisdiction to the federal courts); Siekman v. Kirk Mortgage Co.,
548 F.
Supp. 50 (E.D. Pa. 1982)(same). Thus it would appear that Congress was
responding to the growing split and amended the statute in order to alleviate any
further confusion. Because we conclude that both the language of the statute and
the legislative history dictate the conclusion that the federal courts have exclusive
jurisdiction, we decline to consider the third potential rebuttal factor, the
compatibility of state-court jurisdiction and federal interests.
B. Filing in State Court Will Not Toll the Statute of Limitations
Appellants argue that even if we find that the federal courts have exclusive
jurisdiction, the filing of the suit in state court tolled the statute of limitations. In
support of this argument, they cite Burnett v. New York Central Railroad Co.,
380
U.S. 424,
85 S. Ct. 1050 (1965), in which the Court found that a plaintiff who
properly filed in state court, but in the wrong venue, tolled the statute of limitations
on an action arising under the Federal Employers’ Liability Act (“FELA”). In
Burnett, the plaintiff’s initial suit was dismissed for lack of venue, and he later
filed in federal court after the statute of limitations had run on the FELA action.
The district court dismissed the action. The Supreme Court explained that had the
9
state law permitted transfer of the initial suit to a court with proper venue, the
statute would have been tolled. See
id. at 426,
85 S. Ct. at 1053. From this case,
the Appellants argue that because Georgia has such a transfer statute,5 they should
be permitted to toll the statute of limitations by filing in state court.
However, unlike here, the state court in Burnett had jurisdiction to hear the
claim. Under
45 U.S.C. § 56, FELA’s jurisdictional statute, concurrent jurisdiction
is specifically reserved. Thus the plaintiff in Burnett filed in a court with
competent jurisdiction over his claim, albeit not the proper court: “Congress did
5
O.C.G.A. § 9-2-61 Renewal of case after dismissal.
(a) When any case has been commenced in either a state or federal court within the
applicable statute of limitations and the plaintiff discontinues or dismisses the
same, it may be recommenced in a court of this state or in a federal court either
within the original applicable period of limitations or within six months after the
discontinuance or dismissal, whichever is later, subject to the requirement of
payment of costs in the original action as required by subsection (d) of Code
Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after
the expiration of the applicable period of limitation, this privilege of renewal shall
be exercised only once.
...
(c) The provisions of subsection (a) of this Code section granting a privilege of
renewal shall apply if an action is discontinued or dismissed without prejudice for
lack of subject matter jurisdiction in either a court of this state or a federal court
in this state.
Appellants cannot use this statute because they did not dismiss or discontinue the suit.
Thus, we do not address the issue of what effect a state statute might have had on our
analysis.
10
not intend the statute of limitation to bar a plaintiff who brings a timely FELA
action in a state court of competent jurisdiction ....” Id. at 432,
85 S. Ct. at 1057.
Here, the Appellants filed in a court that could not hear their claim, so the analogy
to Burnett fails.
Additionally, this Court has found that Burnett’s logic did not apply in a
similar situation involving the Death on the High Seas Act, which this court
assumed also grants exclusive federal jurisdiction. See Bailey v. Carnival Cruise
Lines, Inc.,
774 F.2d 1577, 1581 (11th Cir. 1985). There, the plaintiff also
erroneously filed in state court and argued that this filing tolled the statute of
limitations under the doctrine enunciated in Burnett. This Court rejected that
argument because the act in question, unlike FELA, did not grant concurrent
jurisdiction. Id.6 Because § 4072 also does not permit concurrent jurisdiction, we
hold that filing in a court without competent jurisdiction did not toll the statute of
limitations.
III. CONCLUSION
We hold that the district court properly held that § 4072 rebuts the
6
The district court in James v. Auto Owners Insurance Co., No. CV498-182,
1998
WL 914241 (S.D. Ga. Dec. 10, 1998), reached the same result for flood insurance cases.
11
presumption of concurrent jurisdiction and thus properly held that the state court
did not have jurisdiction of appellants’ suit. We also hold that the filing in state
court did not toll the statute of limitations.
AFFIRMED.
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