United States Court of Appeals, Eleventh Circuit

51 F.
3d 235
40 ERC 2049, 63 USLW 2662, 25 Envtl.
L. Rep. 20,956
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,
v.
BOUCHARD TRANSPORTATION COMPANY, INC.,
Maritrans Operating
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, Defendants-Appellees.
Nos. 94-2294, 94-2398.
United States Court of Appeals,

Eleventh Circuit.
April 17, 1995.
As Amended April 26, 1995.
Dominick Joseph Graziano, Tampa, FL, Ralph O. Anderson, Hicks,

Anderson & Blum, P.A., Miami, FL, for appellants.
Carl R. Nelson, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A.,
Nathaniel G.W. Peiper, Lau, Lane, Pieper & Asti, P.A., Tampa, FL,
Robert B. Parrish, Taylor, Moseley & Joyner, P.A., Jacksonville, FL, for
appellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior
Circuit Judge.
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. Secs. 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
2
On August 10, 1993, four vessels collided in Tampa Bay, spilling thousands of
gallons of oil and other oil pollutants in 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,5 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 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 (M.D.Fla.1994). This appeal follows.

II. DISCUSSION
6
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 jurisdiction over private actions brought
under the Act.8
A. Standard of Review
7
Statutory interpretation is a question of law over which we exercise de novo

review. Barnett Bank of Marion County, N.A. v. Gallagher, 43 F.3d 631, 633
(11th Cir.1995).
B. The Oil Pollution Act of 1990

8
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, 793, 130 L.Ed.2d 682
(1995); Brown v. Gardner, --- U.S. ----, ----, 115 S.Ct. 552, 555, 130 L.Ed.2d
462 (1994).
10
The text of OPA's claims presentation provision states:
(a) Presentation
11
12
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....
...
13
(c) Election
14
15
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 liability for the claim, or
16
(2) the claim is not settled by any person by payment within 90 days after the date
17
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,
18 claimant may elect to commence an action in court against the responsible party
the
or guarantor or to present the claim to the Fund.
19
33 U.S.C.A. Sec. 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. Sec. 2701(3).
"Damages" are "specified in section 2702(b) of this title." 33 U.S.C.A. Sec.
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. Sec. 2702(b)(2)(B), (D), and
(E).
20
Appellants do not claim that the language of Sec. 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 Sec. 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 Iowa, 490 U.S. 296, 300-02,
109 S.Ct. 1814, 1818, 104 L.Ed.2d 318 (1989). In contrast, no reading of Sec.
2713(a)'s language suggests that Congress intended to limit its applicability to
claims against the Fund.
21
The language of Sec. 2713(c)'s election of remedies provision bolsters our

interpretation of Sec. 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. Sec. 2713(c) (emphasis supplied). The natural reading of Sec. 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 Sec. 2713(a), supporting our conclusion that
Sec. 2713(a) applies to all claims. In contrast, accepting Appellants'
interpretation of Sec. 2713(a) would make parts of Sec. 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 (1994).
22
2. The Act's Structure and Purpose.
23
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 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.
24
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.
25
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 (1994).
26
Appellants' claim that OPA's preservation of state oil spill remedies, 33
26
U.S.C.A. Sec. 2718(a), contradicts Sec. 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 Sec. 2713(a)
forecloses that possibility. A general statutory provision like OPA's savings
clause does not trump the more specific command of Sec. 2713(a). See Morales
v. TWA, Inc., 504 U.S. 374, 384-85, 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 (1989).
27
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. Sec. 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. Silver, 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 action.
28
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.
29
3. The CERCLA Analogy.
30
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. Secs. 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. Sec. 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.
31
The differences between OPA and CERCLA are more important and significant
than the similarities upon which Appellants rely. 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. Sec. 2713(a) with 42
U.S.C.A. Sec. 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
541-42.
32
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 384-85, 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 U.S. 246, 263-65, 72 S.Ct. 240, 250,
96 L.Ed. 288 (1952)). Appellants fail to identify any word or phrase in Sec.
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 claims.).
33
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.
34
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 Sec. 2713 creates a mandatory condition precedent barring
all OPA claims unless and until a claimant has presented her claims in
compliance with Sec. 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. Sec. 2713(c).
C. Consequence of Dismissal
35
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 (1993) (stating that congressional
failure to specify a consequence for noncompliance with a statute's timing
requirement counsels against dismissal for noncompliance).
III. CONCLUSION
36
We hold that the district court correctly interpreted Sec. 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.
37
AFFIRMED.
We affirm the award of costs to Appellees as they are the prevailing parties in
this litigation
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. Secs. 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.A. Secs. 2713-2714
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. Sec. 9509 (West 1989 & Supp.1994); 33 U.S.C.A. Secs.
2701(11) & 2712
Appellants do not appeal the district court's finding that diversity jurisdiction
did not exist. See Boca Ciega, 844 F.Supp. at 1516
Defined as "any person or government who presents a claim for

compensation...." 33 U.S.C.A. Sec. 2701(4)
10
There is evidence in OPA's text, compare 33 U.S.C.A. Sec. 2713(c), with 42

U.S.C.A. Sec. 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

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51 F.

BOCA CIEGA HOTEL, INC., a Florida corporation; Barry G.

United States Court of Appeals,

Dominick Joseph Graziano, Tampa, FL, Ralph O. Anderson, Hicks,

In responding to Appellees' motions, Appellants never claimed that they

F.Supp. 1512 (M.D.Fla.1994). This appeal follows.

Statutory interpretation is a question of law over which we exercise de novo

B. The Oil Pollution Act of 1990

1. The Act's Plain Text.

The text of OPA's claims presentation provision states:

Except as provided in subsection (b) of this section [delineating presentation to

If a claim is presented in accordance with subsection (a) of this section and--

33 U.S.C.A. Sec. 2713 (emphasis supplied). OPA defines a "claim" as "a

The language of Sec. 2713(c)'s election of remedies provision bolsters our

2. The Act's Structure and Purpose.

Appellants' reliance on the "overall purpose" of OPA--which they claim is "to

Appellants' claim that OPA's preservation of state oil spill remedies, 33

Finally, Appellants' policy objections to the claims presentation requirement are

Having found nothing in the text or legislative history of OPA remotely

3. The CERCLA Analogy.

Appellants' invocation of the doctrine of reading statutes in pari materia is

In conclusion, Appellants have presented nothing which even approaches the

sort of extraordinary showing of contrary legislative intent we require before

See 33 U.S.C.A. Secs. 2701(32) & 2714

See 33 U.S.C.A. Secs. 2713-2714

Defined as "any person or government who presents a claim for

There is evidence in OPA's text, compare 33 U.S.C.A. Sec. 2713(c), with 42

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