Mccormick v. United States

680 F.2d 345 (5th Cir. 1982)

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Nature of the Case

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Facts

On August 22, 1976, P and a friend were traversing the waters of the Choctawhatchee Bay near the Army's Fort Rucker Recreational Area, which is located on the north shore. P and his friend were in a small pleasure boat owned and operated by P. The boat struck an unmarked piling near the outer end of a pier extending from the recreational area into the Bay. Ps assert that the piling was 'unlawfully placed and improperly constructed by the United States Army so as to impede and create a hazard for those navigating the waters.' Ps submitted claims to the Department of the Army because Ps' believed that their claims were governed by the Federal Tort Claims Act (FTCA). The FTCA requires submission of a claim for damages to the appropriate administrative agency as a precondition to filing suit in court. The claim was denied on September 22, 1978, on the ground that administrative authority to settle the claims had expired on August 22, 1978, the second anniversary of the accident. Ps filed a complaint on November 6, 1978, alleging jurisdiction under the FTCA. D denied that the action arose under the FTCA, and alleged that jurisdiction could lie, if at all, only under the Suits in Admiralty Act (SAA), 46 U.S.C. §§ 741-752. D filed a motion to dismiss the action for lack of subject matter jurisdiction because the complaint was not filed within the two-year limitation period prescribed by the SAA. 46 U.S.C. § 745. The district court granted the motion and dismissed the action. Ps appealed. Ps contend that, if this case arises under the Suits in Admiralty Act, the district court erred by finding that the two-year statute of limitations in the SAA was not tolled during the time that Ps' claims were pending before the Department of the Army.