APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-768).
Hunter, Kalodner and Garth, Circuit Judges.
The critical question presented by this appeal is whether Rosario, appellee here and plaintiff below, may be permitted to file a complaint under the Federal Tort Claims Act against the United States, which was brought into the case as a third-party defendant by American Export-Isbrandtsen Lines, without first filing an administrative claim with the appropriate government agency as required by 28 U.S.C. § 2675(a) (1970). The district court answered this question in the affirmative. For the reasons set forth below, we reverse.
On March 31, 1971, Christobal Rosario, a merchant seaman, instituted this action against American Export-Isbrandtsen Lines, Inc., under the Jones Act, 46 U.S.C. § 688 et seq., for injuries he sustained while employed aboard the defendant's vessel in 1970.*fn1 Subsequently, on April 27, 1972, American Export-Isbrandtsen joined the United States of America as a third-party defendant under rule 14 Federal Rules of Civil Procedure. The third-party complaint sought indemnity or contribution from the United States for failure to render adequate medical treatment and care to appellee during his contact with and treatment by facilities of the United States Public Health Service.*fn2 Jurisdiction over the third-party complaint was based on the Federal Tort Claims Act, 28 U.S.C. § 1346 (1970). The government answered the third-party complaint on August 22, 1972, denying liability to American Export-Isbrandtsen.
On April 4, 1974, appellee filed a complaint against the United States styled "Plaintiff's Complaint and Cross-Claim Against Third-Party Defendant, United States of America." The complaint alleged jurisdiction based on the Federal Tort Claims Act and liability founded on the same acts of medical negligence as had been asserted by American Export-Isbrandtsen in its third-party complaint. Thereafter, the government moved to dismiss appellee's complaint on the grounds that no administrative claim had been presented to the appropriate government agency as required by 28 U.S.C. § 2675(a) (1970) and that the statute of limitations had run on appellee's cause of action. The district court, on July 24, 1974, denied the government's motion because it considered appellee's complaint against the government to be a third-party complaint under rule 14 of the Federal Rules of Civil Procedure and thus exempt from the filing of administrative claim requirement in section 2675(a). However, the court granted the government leave to renew its statute of limitations contention at a later time.*fn3
Trial of Rosario's Federal Tort Claims Act claim against the United States was held on December 4-6, 1974 after he had settled his Jones Act claim against American Export-Isbrandtsen. At the conclusion of all the evidence, the court found that the statute of limitations had not run on appellee's cause of action. Thereafter, on April 2, 1975, the court entered judgment in favor of appellee and against the United States for $288,648.*fn3a This appeal followed.*fn4
It is well settled that the United States, as sovereign, is immune from suit except as it consents to be sued and that the terms of its consent to be sued in any court define the court's jurisdiction to entertain the action. United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941); Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971). The United States has consented to be sued for torts committed by its employees while acting within the scope of their employment in the Federal Tort Claims Act. 28 U.S.C. § 1346 (1970). But as a prerequisite to suit under the Act, 28 U.S.C. § 2675(a) requires that the claim first be presented to the appropriate federal agency and be finally denied by the agency.*fn5 This requirement is jurisdictional and cannot be waived. Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 23-24 (3d Cir. 1975); Bialowas v. United States, supra at 1049.*fn6
Thus, it is undisputed that appellee could not have instituted this action against the United States directly without filing an administrative claim pursuant to section 2675(a). However, the last sentence of section 2675(a) provides that "the provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim." Appellee asserts, and the district court agreed,*fn7 that his complaint was a "third-party complaint" and thus within the exception provided in the last sentence of section 2675(a). We disagree.*fn8
Third party practice in the federal courts is governed by rule 14 of the Federal Rules of Civil Procedure. Initially, we note that there is some dispute whether the district court's holding that appellee's complaint against the United States was a third-party complaint was grounded on rule 14(a), the section governing third-party practice in general, or on rule 14(c), the section concerning third-party practice in admiralty cases.*fn9 However, since in our opinion neither rule 14(a) nor rule 14(c) enables appellee to take advantage of the last sentence of section 2675(a), we need not determine the precise basis for the district court's conclusion.*fn10
Rule 14(c),*fn11 which the district court initially stated "controlled" plaintiff's complaint against the United States, cannot be of aid to appellee.*fn12 Rule 14(c) provides that when a plaintiff asserts an admiralty or maritime claim, as was the situation sub judice, the defendant or claimant, as third-party plaintiff, may bring in a third-party defendant who may be liable either to the plaintiff or to the third-party plaintiff because of the same transaction or occurrence that forms the basis for the original admiralty action. Appellee is clearly not a defendant; nor is he a claimant since the term "claimant" refers to the claimant of seized property who is defending an in rem action.*fn13 Rule 14(c) does state that in the event the third-party plaintiff demands judgment against the third-party defendant in favor of the plaintiff, the action shall proceed as if the plaintiff had commenced it against the third-party defendant originally. In the instant case, however, American Export-Isbrandtsen demanded judgment against the United States in favor of itself not in favor of appellee,*fn14 and, therefore, this provision is inapplicable.
Rule 14(a)*fn15 permits the plaintiff to assert against a third-party defendant who has already been brought into the action any claim which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. Appellee contends that its complaint against the United States is a "third-party complaint" by virtue of this portion of rule 14(a). We disagree. Appellee's complaint against the United States was not a third-party complaint but rather was a direct, in effect original, complaint by the plaintiff against the third-party defendant. See Monarch Industrial Corp. v. American Motorists Insurance Co., 276 F. Supp. 972, 981 (S.D. N.Y. 1967); Carlise v. Monongahela Ry., 16 F.R.D. 426, 427 (W.D. Pa. 1954).*fn16 Since there must exist an independent jurisdictional basis for the direct claim of a plaintiff against the third-party defendant under rule 14(a), Patton v. Baltimore & Ohio R.R., 197 F.2d 732, 743-45 (3d Cir. 1952); Gladden v. Stockard S.S. Co., 184 F.2d 510, 512 (3d Cir. 1950); Pearce v. Pennsylvania R.R., 162 F.2d 524, 528 (3d Cir.), cert. denied, 332 U.S. 765, 92 L. Ed. 350, 68 S. Ct. 71 (1947),*fn17 and since appellee failed to meet the ...