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United States v. Dae Rim Fishery Co.

ELR Citation: 16 ELR 20793
Nos. No. 85-3524, 794 F.2d 1392/24 ERC 1727/(9th Cir., 07/18/1986)

The court holds that the six-year statute of limitations in 28 U.S.C. §2415 for contract actions brought by the United States applies to a government action brought under the Federal Water Pollution Control Act (FWPCA) for recovery of oil pollution removal costs. The court initially holds that a government cost recovery action brought under §311(f)(1) of the FWPCA is governed by 28 U.S.C. §2415 since it is a suit for damages. The court then rules that the six-year statute of limitations in 28 U.S.C. §2415(a) applies to §311 actions. The court holds that FWPCA cost recovery claims sound in quasi-contract, thus triggering the six-year limitation, rather than tort, which triggers a three-year limitation. The quasi-contractual remedy of restitution is appropriate where the government performs the polluter's duty of cleaning up the spill with the intent to charge the polluter for the cost, and the cleanup was necessary to preserve the public health and welfare. The court then holds that even if the three-year statute of limitations in 28 U.S.C. §2415(b) applies, the government's action was timely filed. The court holds that the statute of limitations for an FWPCA §311 cost recovery action does not begin to run until the cleanup has been completed. Although the government's complaint in this case was not officially filed until three years and one day after the cleanup had been completed, the court holds the government constructively filed the complaint five days earlier. The complaint was delivered to the clerk; such actual possession of the pleading is sufficient despite the violation of a provision of local procedures which caused the clerk to initially reject the complaint.

Counsel for Plaintiff-Appellant
Peter K. Mitchell, Phillip A. Bruns
Department of Justice
Federal Bldg., U.S. Courthouse
450 Golden Gate Ave., San Francisco CA 94102-3400
(415) 556-1126

Counsel for Defendants-Appellees
Ann K. Stokes, Michael H. Woodell
Bradbury, Bliss & Riordan, Inc.
431 W. Seventh Ave., Suite 201, Anchorage AK 99501
(907) 279-4571

Before Wright and Strand,* JJ.