Boca Ciega Hotel v. Bouchard Trans. ( 1995 )

  •                       United States Court of Appeals,
                                 Eleventh Circuit.
                              Nos. 94-2294, 94-2398.
     BOCA CIEGA HOTEL, INC., a Florida corporation; Barry G. Jones,
    d/b/a All Suites Motel;    Brenda Louise Jones, d/b/a All Suites
    Motel; John Jones, Plaintiffs-Appellants,
    Partners L.P., Tug Captain Fred Bouchard Corporation, a New York
    corporation, Barge B 155 Corp., a New York corporation, Jose
    Salamanca, Captain;      Pepito G. Amora, Thomas A. Baggett,
                                  April 17, 1995.
                            As Amended April 26, 1995.
    Appeal from the United States District Court for the Middle
    District of Florida.     (No. 93-1616-CIV-T-17C), Elizabeth A.
    Kovachevich, District Judge.
    Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit
           BLACK, Circuit Judge:
           In this case we must decide whether the claims presentation
    procedure of the Oil Pollution Act of 1990 (OPA or Act), 33
    U.S.C.A. §§ 2701-2761 (West Supp.1994), constitutes a mandatory
    condition precedent to the filing of private lawsuits under the
    Act.       We conclude that it does and affirm.1
                                   I. BACKGROUND
           On August 10, 1993, four vessels collided in Tampa Bay,
    spilling thousands of gallons of oil and other oil pollutants in
          We affirm the award of costs to Appellees as they are the
    prevailing parties in this litigation.
    the   process.2   Pursuant to OPA,            3
                                                       the   Coast    Guard    designated
    Appellees Bouchard Transportation (Bouchard), as owner and operator
    of the vessel "Tug Captain Fred Bouchard" and barge "B. 155," and
    Maritrans Operating Partners (Maritrans), as owner and operator of
    the   vessel   "Seafarer"       and    barge       "Ocean    255,"     (collectively,
    Appellees) as the "responsible parties" for the spill.4                             The
    Appellants brought this action individually and on behalf of
    several   plaintiff      classes      to   recover       business,     property,   and
    tourist damages sustained as a result of the spill.                     The complaint
    alleged liability under OPA's citizen suit provisions and various
    Florida statutory and common-law theories.
          Appellees    Bouchard      and       Maritrans      moved   to    dismiss    the
    complaint for lack of subject matter jurisdiction.                      According to
    Appellees,     federal    subject      matter      jurisdiction      did   not   exist
    because   Appellants      had    failed       to    comply    with     OPA's     claims
    presentation procedure.         Conforming to OPA, Bouchard and Maritrans
    had organized a claims clearinghouse to identify, process, and
    settle claims arising from the spill.                Appellees took the position
    that resort to this claims presentation process is a mandatory
    condition precedent to any OPA lawsuit, and that Appellants'
    failure to present their claims rendered them unripe for judicial
          Because the district court dismissed this action before
    extensive discovery could occur, we take all allegations in the
    complaint as true.
           See 33 U.S.C.A. §§ 2701(32) & 2714.
          Appellees Jose Salamanca, Pepito Amora, and Thomas Baggett
    were named as defendants for their role in operating another
    vessel involved in the spill, the "Balsa 37."
           See 33 U.S.C. §§ 2713-2714.
    resolution.          Appellees also disputed the existence of federal
    diversity jurisdiction because several of the named plaintiffs
    shared Florida citizenship with defendant Thomas Baggett.
           In responding to Appellees' motions, Appellants never claimed
    that       they   satisfied    OPA's   claims     presentation     requirement.6
    Instead, they maintained that the claims presentation requirement
    only applies to actions seeking to recover from the OPA-created
    cleanup fund (Fund),7 not to actions brought directly against the
    responsible parties.           Appellants also argued that the district
    court possessed diversity jurisdiction over their state law claims.
           In    February    1994,   the   district    court   ruled   in   favor   of
    Appellees and granted their motions to dismiss.              Boca Ciega Hotel,
    Inc. v. Bouchard Transp. Co., 
    844 F. Supp. 1512
    This appeal follows.
                                     II. DISCUSSION
           The    only    issue   before   us   is   whether   the   district   court
    correctly found that compliance with OPA's claims presentation
    requirement is a mandatory condition precedent to the existence of
          Appellants did not allege compliance with the claims
    presentation procedure until their reply brief. Assuming,
    arguendo, that Appellants now are asserting compliance with OPA's
    claims presentation provision, we decline to address the issue
    because we generally do not address issues first raised in a
    reply brief. Allstate Ins. Co. v. Swann, 
    27 F.3d 1539
    , 1542
    (11th Cir.1994). Moreover, even assuming that the alleged
    post-dismissal claims presentation could render this case moot,
    the issue before us is a classic example of one "capable of
    repetition, yet evading review." See Murphy v. Hunt, 
    455 U.S. 478
    , 482, 
    102 S. Ct. 1181
    , 1183, 
    71 L. Ed. 2d 353
     (1982); Naturist
    Soc'y, Inc. v. Fillyaw, 
    958 F.2d 1515
    , 1520-21 (11th Cir.1992).
          See 26 U.S.C.A. § 9509 (West 1989 & Supp.1994);                33
    U.S.C.A. §§ 2701(11) & 2712.
    jurisdiction over private actions brought under the Act.8
    A. Standard of Review
             Statutory interpretation is a question of law over which we
    exercise de novo review.      Barnett Bank of Marion County, N.A. v.
    43 F.3d 631
    , 633 (11th Cir.1995).
    B. The Oil Pollution Act of 1990
    1. The Act's Plain Text.
             It is axiomatic that the interpretation of a statute must
    begin, and usually ends, with the text of the statute.      Estate of
    Cowart v. Nicklos Drilling Co., --- U.S. ----, ----, 
    112 S. Ct. 2589
    , 2594, 
    120 L. Ed. 2d 379
     (1992);     United States v. Kirkland, 
    12 F.3d 199
    , 202 (11th Cir.1994). When interpreting the text, we give
    undefined terms their plain, ordinary, and most natural meaning.
    Asgrow Seed Co. v. Winterboer, --- U.S. ----, ----, 
    115 S. Ct. 788
    130 L. Ed. 2d 682
     (1995);    Brown v. Gardner, --- U.S. ----, ----
    115 S. Ct. 552
    , 555, 
    130 L. Ed. 2d 462
             The text of OPA's claims presentation provision states:
         (a) Presentation
              Except as provided in subsection (b) of this section
         [delineating presentation to the Fund], all claims for removal
         costs or damages shall be presented first to the responsible
         party or guarantor....
         (c) Election
              If a claim is presented in accordance with subsection (a)
         of this section and—
                 (1) each person to whom the claim is presented denies all
          Appellants do not appeal the district court's finding that
    diversity jurisdiction did not exist. See Boca Ciega, 844
    F.Supp. at 1516.
                 liability for the claim, or
                 (2) the claim is not settled by any person by payment
                 within 90 days after the date upon which (A) the claim
                 was presented, or (B) advertising was begun pursuant to
                 section 2714(b) of this title [delineating the claims
                 clearinghouse procedures], whichever is later,
           the claimant may elect to commence an action in court against
           the responsible party or guarantor or to present the claim to
           the Fund.
    33 U.S.C.A. § 2713 (emphasis supplied).           OPA defines a "claim" as
    "a request, made in writing for a sum certain, for compensation for
    damages or removal costs resulting from an incident."               33 U.S.C.A.
    § 2701(3).       "Damages" are "specified in section 2702(b) of this
    title."     33 U.S.C.A. § 2701(5).        Section 2702(b)'s definition of
    damages clearly includes the relief sought by Appellants in this
    case.    See 33 U.S.C.A. § 2702(b)(2)(B), (D), and (E).
           Appellants do not claim that the language of § 2713 is
    ambiguous.       Nor could they.      Appellants' complaint constitutes a
    "claim" as OPA defines that term.          Section 2713 is very clear that
    "all    claims    ...   shall   be   presented   first   to   the   responsible
    party...."       Congressional use of the word "shall" in § 2713(a) is
    naturally read to place a mandatory condition on all claims.                See
    Mallard v. United States Dist. Court for the Southern Dist. of
    490 U.S. 296
    , 300-02, 
    109 S. Ct. 1814
    , 1818, 
    104 L. Ed. 2d 318
    (1989).    In contrast, no reading of § 2713(a)'s language suggests
    that Congress intended to limit its applicability to claims against
    the Fund.
           The language of § 2713(c)'s election of remedies provision
    bolsters our interpretation of § 2713(a).           Section 2713(c) allows
    a claimant9 whose "claim is presented in accordance with subsection
    (a)"       to   "elect   to   commence   an   action    in    court   against   the
    responsible party ... or to present the claim to the Fund."                      33
    U.S.C.A. § 2713(c) (emphasis supplied).                The natural reading of §
    2713(c) is that claimants like Appellants, filing "in court against
    the responsible part[ies]," as well as claimants seeking recovery
    from the Fund, must present their claims in accordance with §
    2713(a), supporting our conclusion that § 2713(a) applies to all
    claims.         In contrast, accepting Appellants' interpretation of §
    2713(a) would make parts of § 2713(c) superfluous or nonsensical,
    a result to be avoided when interpreting statutes.                 See Ratzlaf v.
    United States, --- U.S. ----, ----, 
    114 S. Ct. 655
    , 659, 
    126 L. Ed. 2d 615
    2. The Act's Structure and Purpose.
               Despite the clarity of OPA's plain language, Appellants argue
    that limiting the claims presentation requirement to claims against
    the Fund is more consistent with the overall structure and purpose
    of the Act.       While discovery of the plain meaning of an unambiguous
    statute will almost always end our inquiry, in rare and exceptional
    circumstances, we may decline to follow the plain meaning of a
    statute because overwhelming extrinsic evidence demonstrates a
    legislative intent contrary to the text's plain meaning. Hallstrom
    v. Tillamook County, 
    493 U.S. 20
    , 28-30, 
    110 S. Ct. 304
    , 310, 
    107 L. Ed. 2d 237
     (1989);           Garcia v. United States, 
    469 U.S. 70
    , 73-75,
    105 S. Ct. 479
    , 482, 
    83 L. Ed. 2d 472
     (1984);                   Kirkland, 12 F.3d at
          Defined as "any person or government who presents a claim
    for compensation...." 33 U.S.C.A. § 2701(4).
    202.    We   therefore    turn   to   Appellants'    contention   that   the
    structure and purpose of OPA so clearly contradicts the plain
    meaning of the claims presentation provision that we should limit
    that provision to claims against the Fund.
           Appellants' reliance on the "overall purpose" of OPA—which
    they claim is "to expand the liability of responsible parties"—is
    misplaced.   Courts have long recognized that statutes, especially
    large, complex statutes like OPA, are the result of innumerable
    compromises between competing interests reflecting many competing
    purposes and goals.      Therefore, "vague notions" about a statute's
    overall purpose cannot be allowed "to overcome the words of its
    text regarding the specific issue under consideration." Mertens v.
    Hewitt Associates, --- U.S. ----, ----, 
    113 S. Ct. 2063
    , 2071, 
    124 L. Ed. 2d 161
     (1993) (emphasis in original).           In short, "[w]e will
    not attempt to adjust the balance between ... competing goals that
    the text adopted by Congress has struck."           Id. at ----, 113 S.Ct.
    at 2072.
           Moreover, Appellants present nothing from OPA's text and
    little from its legislative history to convince us that expanded
    liability was the only, or even primary goal of the Act.            On the
    contrary, passages from the legislative history support Appellees'
    claim that one goal of the claims presentation provision was to
    temper the Act's increased liability with a congressional desire to
    encourage settlement and avoid litigation. See, e.g., H.R.Rep. No.
    242, 101st Cong., 1st Sess., pt. 2 at 66 (1989);           135 Cong.Rec.,
    101st Cong., 1st Sess. H7962 (Nov. 2, 1989) (remarks of Rep. Lent).
    See also Johnson v. Colonial Pipeline Co., 
    830 F. Supp. 309
    , 310
    (E.D.Va.1993).       Even if Appellants could produce textual evidence
    of an overall congressional purpose, the pursuit of broad policy
    goals in some portions of a statute generally does not demonstrate
    an   intent    to   alter    the   plain    statutory     command   of    another
    provision.     See Federal Election Comm'n v. NRA Political Victory
    Fund, --- U.S. ----, ----, 
    115 S. Ct. 537
    , 542, 
    130 L. Ed. 2d 439
           Appellants' claim that OPA's preservation of state oil spill
    remedies, 33 U.S.C.A. § 2718(a), contradicts § 2713's plain meaning
    fails for the same reason.         While the side-by-side co-existence of
    state remedies requiring no presentation and OPA remedies requiring
    presentation might be relevant if we were interpreting a facially
    ambiguous     statute,    the   clarity     of   §   2713(a)   forecloses      that
    possibility.        A general statutory provision like OPA's savings
    clause does not trump the more specific command of § 2713(a).                   See
    Morales v. TWA, Inc., 
    504 U.S. 374
    , ----, 
    112 S. Ct. 2031
    , 2037, 
    119 L. Ed. 2d 157
     (1992);         Green v. Bock Laundry Machine Co., 
    490 U.S. 504
    , 523, 
    109 S. Ct. 1981
    , 1992, 
    104 L. Ed. 2d 557
          Finally,      Appellants'     policy       objections    to   the    claims
    presentation requirement are directed at the wrong forum.                  As the
    Supreme Court noted when construing the notice provision of the
    Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.A.
    § 6972 (West 1989 & Supp.1994),—a provision similar to the one now
    before us—"we are not at liberty to create an exception where
    Congress has declined to do so."             Hallstrom, 493 U.S. at 26, 110
    S.Ct. at 309.       "In the long run, experience teaches that strict
    adherence     to    the   procedural       requirements    specified      by   the
    legislature is the best guarantee of evenhanded administration of
    the law."       Id. at 31, 110 S.Ct. at 311 (quoting Mohasco Corp. v.
    447 U.S. 807
    , 825-27, 
    100 S. Ct. 2486
    , 2497, 
    65 L. Ed. 2d 532
    (1980)).     If Appellants perceive a policy shortcoming caused by
    OPA's claims presentation requirement, that shortcoming "arises as
    a result of the balance struck by Congress," Hallstrom, 493 U.S. at
    30, 110 S.Ct. at 311, and is properly remedied by congressional
         Having found nothing in the text or legislative history of OPA
    remotely approaching the type of extraordinarily clear evidence
    needed to justify departing from the plain meaning of a statute's
    text, we turn to Appellants' remaining argument.
    3. The CERCLA Analogy.
         Appellants devoted a considerable amount of time and space in
    their briefs and at oral argument to the proposition that OPA's
    similarity       with   the   Comprehensive     Environmental       Response,
    Compensation, and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601-9675
    (West Supp.1994), requires us to interpret OPA's claims provision
    consistently with CERCLA's provision, which limits the presentation
    requirement to claims asserted against CERCLA's Fund.                 See 42
    U.S.C.A.    §    9612(a).     See,   e.g.,   United   States   v.    Carolina
    Transformer Co., 
    978 F.2d 832
    , 841 (4th Cir.1992) (holding that
    CERCLA's claims presentation provision only applies to claims
    asserted against the Fund). Appellants' argument is without merit.
         The differences between OPA and CERCLA are more important and
    significant than the similarities which Appellants rely upon.
    Unlike OPA's claims provision, which states that "all claims ...
    shall be presented ...," CERCLA's claims provision states that
    "[a]ll claims which may be asserted against the Fund ... shall be
    presented."   Compare 33 U.S.C.A. § 2713(a) with 42 U.S.C.A. § 9612
    (emphasis supplied).      This significant textual change does not
    suggest that courts should interpret OPA's claims provision as
    having the same scope as CERCLA's.   On the contrary, the change in
    the text, combined with evidence that Congress was aware of CERCLA
    when it enacted OPA,10 suggests that Congress intended the change
    in OPA's language to have substantive consequences and purposely
    rejected the CERCLA approach limiting the presentation requirement
    to those claims asserted against the Fund.    See Brown, --- U.S. at
    ----, 115 S.Ct. at 556;    NRA, --- U.S. at ----, 115 S.Ct. at 541-
          Appellants' invocation of the doctrine of reading statutes in
    pari materia is misplaced.    While it is true that similar statutes
    should be read consistently, see, e.g., Morales, 504 U.S. at ----,
    112 S.Ct. at 2037, that general rule has no bearing in this case.
    First of all, the doctrine of reading statutes in pari materia only
    makes sense when the word or phrase being interpreted has acquired
    special, non-literal significance as a legal term of art.       See
    Molzof v. United States, 
    502 U.S. 301
    , 307-09, 
    112 S. Ct. 711
    , 716,
    116 L. Ed. 2d 731
     (1992) (quoting Morissette v. United States, 342
          There is evidence in OPA's text, compare 33 U.S.C.A. §
    2713(c), with 42 U.S.C.A. § 9612(a), and legislative history, see
    S.Rep. No. 94, 101st Cong., 1st Sess., 2 (1989), that Congress
    was aware of, and occasionally borrowed from, CERCLA when
    enacting OPA. But contrary to Appellants' argument, when that
    fact is coupled with a comparison of the respective claims
    procedures' text, the most logical conclusion is that Congress
    rejected the CERCLA limitation when adopting OPA's claims
    presentation provision.
    U.S.    246,   263-65,    
    72 S. Ct. 240
    ,   250,   
    96 L. Ed. 288
    Appellants fail to identify any word or phrase in § 2713 which has
    become a legal term of art.         If Appellants are suggesting that all
    claims presentation provisions should be interpreted consistent
    with CERCLA's, then their argument flies in the face of clear
    precedent to the contrary.          See Hallstrom, 493 U.S. at 28-31, 110
    S.Ct.    at    310-11   (holding    that   RCRA's    notice   provision    is   a
    condition precedent to all claims);           National Envtl. Foundation v.
    ABC Rail Corp., 
    926 F.2d 1096
    , 1097 (11th Cir.1991) (holding that
    Clean Water Act's notice provision is a condition precedent to all
           Second, the doctrine of reading statutes in pari materia
    suggests that Congress presumably knows and adopts the "cluster of
    ideas" attached to the borrowed term of art, and resort to the
    doctrine should occur "unless otherwise instructed."               See Molzof,
    502 U.S. at 307, 112 S.Ct. at 716 (quoting Morissette, 342 U.S. at
    263-65, 72 S.Ct. at 250).           Here, where the text of the statutory
    provision "otherwise instructs," id., the doctrine of reading
    statutes in pari materia has no place.              Appellants' argument that
    OPA's claims presentation requirement should be read consistently
    with CERCLA's therefore is rejected.
           In conclusion, Appellants have presented nothing which even
    approaches      the     sort   of   extraordinary      showing    of    contrary
    legislative intent we require before departing from the plain
    meaning of a clear statutory text.             We therefore hold that the
    clear text of § 2713 creates a mandatory condition precedent
    barring all OPA claims unless and until a claimant has presented
    her claims in compliance with § 2713(a) and either:                     (1) all
    responsible parties deny all liability;            or (2) the claim is not
    settled   by     payment    within   90   days   after   (A)   the   claim   was
    presented, or (B) advertising was begun under section 2714(b) of
    the Act, whichever is later.         33 U.S.C.A. § 2713(c).
    C. Consequence of Dismissal
         All parties agree that the district court's dismissal should
    not be treated as a dismissal with prejudice.                Appellants remain
    free to refile this action, if and when they comply with OPA's
    claims presentation procedure. See also Hallstrom, 493 U.S. at 31-
    33, 110 S.Ct. at 312 (holding that after dismissal, plaintiffs may
    refile    suit     after     compliance     with    RCRA's     60-day    notice
    requirement).      Cf. United States v. Daniel Good Real Property, ---
    U.S. ----, ----, 
    114 S. Ct. 492
    , 506-07, 
    126 L. Ed. 2d 490
    (stating that congressional failure to specify a consequence for
    noncompliance with a statute's timing requirement counsels against
    dismissal for noncompliance).
                                    III. CONCLUSION
         We hold that the district court correctly interpreted §
    2713(a) as creating a mandatory condition precedent to bringing any
    claims under OPA.          Consequently, the district court was correct
    when it granted the Appellees' motions to dismiss for lack of
    subject matter jurisdiction.