Mayeux v. US Army Corps Engs

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31066
Summary Calendar
RODNEY MAYEUX,
Plaintiff-Appellant,
versus
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 96-CV-1304-R
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July 17, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges
PER CURIAM:*
Rodney Mayeux his complaint under the Federal Tort Claims
Act (FTCA). He appeals from the district court’s dismissal of
his complaint for lack of subject-matter jurisdiction. Finding
no error, we affirm.
The United States, as a sovereign, is immune from suit
unless it consents to be sued. United States v. Mitchell, 445
U.S. 535, 538 (1980). Both the FTCA and the Suits in Admiralty
Act (SAA) waive sovereign immunity. The FTCA waives the
Government’s sovereign immunity from tort liability and provides
*
Under 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except in
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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a remedy against the United States for personal injury resulting
from the negligence of its agents or employees. See 28 U.S.C. §
1346(b). The FTCA does not apply to “[a]ny claim for which a
remedy is provided by [the Public Vessels Act or the SAA],
relating to claims or suits in admiralty against the United
States.” See 28 U.S.C. § 2680(d). The FTCA and the SAA are
mutually exclusive. Mayeux’s assertion of jurisdiction under the
FTCA is correct only if his claim is not covered by the SAA. See
McCormick v. United States, 680 F.2d 345, 348 (5th Cir. 1982).
The SAA waives sovereign immunity of the United States not
only in cases involving government vessels, property, or cargo,
but also in cases in which a proceeding in admiralty could be
maintained if a private person or property were involved. 46
U.S.C. app § 742; see McCormick, 680 F.2d at 349. The present
case, in which the alleged negligence of a government employee
caused injury in the navigable waters of the Harvey Canal, is a
case covered by the SAA. See McCormick, 680 F.2d at 349. See
also De Bardeleben Marine Corp. v. United States, 451 F.2d 140,
145 (5th Cir. 1971)(applying the SAA to a claim for negligent
drafting of maritime survey charts); Sheridan Trans. Co. v.
United States, 897 F.2d 795, 800 (5th Cir. 1990)(applying the SAA
to a claim for failure to give notice of submerged wreck).
Mayeux’s argument has no merit.
Suits filed under the SAA must be filed within two years of
the time when the cause of action arises. See 46 U.S.C. app. §
745; see McMahon v. United States, 342 U.S. 25, 27 (1951).
Mayeux’s suit was filed on April 15, 1996, almost six months
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after the limitations period expired. Mayeux argues that his
suit is not time-barred because of the doctrine of equitable
tolling. We find that Mayeux did not allege any facts justifying
the tolling of the statute of limitations.
The judgment of the district court is AFFIRMED.