Thomas A. Bullen, Plaintiff-appellant, v. United States of America; International Marine Carriers,defendants-appellees, 24 F.3d 245 (9th Cir. 1994)

MEMORANDUM^** 

Thomas Bullen appeals the district court's dismissal for lack of subject matter jurisdiction of his admiralty action against the United States and others for recovery of maintenance, cure, and unearned wages arising out of his discharge from a government vessel due to a foot injury. The district court concluded that Bullen's action was barred by the two-year statute of limitations set forth in the Suits in Admiralty Act ("SAA"), 46 U.S.C. § 741-52.¹  We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

This court reviews de novo the existence of subject matter jurisdiction. Reebok Int'l, Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 554 (9th Cir. 1992).

Bullen contends that the district court erred by dismissing his action against the United States²  because SAA's two-year statute of limitations did not apply to his maintenance and cure action. Alternatively, Bullen contends that if the statute of limitations applied, his action was filed within the statutory period.

A waiver of sovereign immunity is a prerequisite to any action brought against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Congress has provided a limited waiver of sovereign immunity for admiralty claims against the United States brought under the SAA and the Clarification Act, 50 App.U.S.C. 1291.³  Smith v. United States, 873 F.2d 218, 219 (9th Cir. 1989); see Williams v. United States, 711 F.2d 893, 895 (9th Cir. 1983). To qualify for the waiver, however, the plaintiff must meet the SAA's two-year statute of limitations. See 46 U.S.C. § 745; Smith, 873 F.2d at 220; Williams, 711 F.2d at 897 n. 5. The SAA's statute of limitations is jurisdictional, see Smith, 873 F.2d at 221-22 (discussing Williams, 711 F.2d at 899 n. 9), and the two-year period begins to run on the date of injury, not the date on which an administrative claim is disallowed, see McMahon v. United States, 342 U.S. 25, 27 (1951); H-10 Water Taxi Co. v. United States, 379 F.2d 963, 965 (9th Cir. 1967) (vessel's obligation to provide maintenance and cure arose the day seaman suffered injury).

Here, because Bullen was employed as a seaman on a vessel owned by the United States, his claim for maintenance, cure, and unearned wages from the United States was within the SAA and the Clarification Act. See Smith, 873 F.2d at 219-20. Bullen failed to meet the requirement of filing his suit against the United States within the SAA's two-year statute of limitations.⁴  See id. at 220; 46 U.S.C. § 745. Bullen was discharged from the United States vessel because of a foot injury on February 11, 1991, but he did not file suit against the United States until March 16, 1993, more than two years after the injury occurred.⁵  See Smith, 873 F.2d at 220; McMahon, 342 U.S. at 27; H-10 Water Taxi, 379 F.2d at 965. Thus, because Bullen's suit was not timely filed, the district court lacked jurisdiction over Bullen's admiralty claims against the United States. See Smith, 873 F.2d at 221-22. Accordingly, the district court did not err by dismissing Bullen's action against the United States for lack of subject matter jurisdiction. See Reebok, 97 F.2d at 554.

AFFIRMED.