OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
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.
I.
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
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.
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.
II.
It is well settled that the United States, as sovereign, is immune from suit
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 "[t]he 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,
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.
Rule 14(a)
Our conclusion that appellee was required to file an administrative claim is buttressed by a consideration of the policies underlying section 2675(a) and the purpose behind the statutory exception for third-party complaints. Section 2675(a) was enacted in 1966 to improve and expedite the disposition of tort claims against the government by establishing a system of prelitigation administrative consideration and settlement of claims, thereby reducing court congestion and eliminating unnecessary litigation. Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 23 n.27 (3d Cir. 1975); Meeker v. United States, 435 F.2d 1219, 1222 (8th Cir. 1970); 2 U.S.Code Cong. & Admin.News 2515-20 (1966). To permit appellee to maintain this action against the United States would undermine the important
Appellee's final argument in support of jurisdiction is an equitable one. He asserts that since there is already an existing lawsuit in which the United States is a party, we should allow him to maintain his claim against the government. This contention need not detain us long. The simple answer is that section 2675(a) is a jurisdictional prerequisite to suit under the Federal Tort Claims Act and cannot be waived. See p. 4 supra.
III.
Accordingly, the judgment of the district court will be reversed and the case will be remanded with directions to dismiss appellee's "Complaint and Cross-claim" against the United States for failure to file an administrative claim as required by section 2675(a).
FootNotes
App. at 15.
3 Moore ¶ 14.01[3], at 14-41 (emphasis added).
The question whether a direct claim by a plaintiff against a third-party defendant under rule 14(a) is within the ancillary jurisdiction of the federal courts was not briefed or argued before this court on appeal although the district court was apparently presented with this contention and rejected it. 395 F.Supp. at 1195. Several commentators and some district courts have contended that such claims may be cognizable by federal courts under the doctrine of ancillary jurisdiction, e. g., 3 Moore ¶ 14.27[1], at 14-565 to -574 (cases cited therein); 6 Wright & Miller § 1444, at 229-32, although we note that as yet no court of appeals has adopted the ancillary jurisdiction argument. Kenrose Mfg. Co. v. Fred Whitaker Co., supra at 894. However, even if we were to adopt the argument that a plaintiff's direct claim against a third-party defendant is within the ancillary jurisdiction of the federal courts, the exercise of the court's discretionary power under that doctrine would clearly have been inappropriate in the instant case because of the policy underlying section 2675(a), pp. 9-10 infra, and because by the time of trial appellee's claim against American Export-Isbrandtsen had been settled. See United Mine Workers v. Gibbs, 383 U.S. 715, 726-29, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218, 228 (1966).
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