1

Because the district court dismissed this action before

extensive discovery could occur, we take all allegations in the

complaint as true. 

 2See 33 U.S.C.A. §§ 2701(32) & 2714. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2294.

BOCA CIEGA HOTEL, INC., a Florida corporation; Barry G. Jones,

d/b/a All Suites Motel; Brenda Louise Jones, d/b/a All Suites

Motel; John Jones, Plaintiffs-Appellants,

v.

BOUCHARD TRANSPORTATION COMPANY, INC., Maritrans Operating

Partners L.P., Tug Captain Fred Bouchard Corporation, a New York

corporation, Barge B 155 Corp., a New York corporation, Jose

Salamanca, Captain; Pepito G. Amora, Thomas A. Baggett,

Defendants-Appellees.

April 17, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (No. 93-1616-CIV-t-17C), Elizabeth A.

Kovachevich, Judge.

Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit

Judge.

BLACK, Circuit Judge:

In this case we must decide whether the claims presentation

procedure of the Oil Pollution Act of 1990 (OPA or Act), 33

U.S.C.A. §§ 2701-2761 (West Supp.1994), constitutes a mandatory

condition precedent to the filing of private lawsuits under the

Act. We conclude that it does and affirm.

I. BACKGROUND

On August 10, 1993, four vessels collided in Tampa Bay,

spilling thousands of gallons of oil and other oil pollutants in

the process.1 Pursuant to OPA, 2 the Coast Guard designated
 3

Appellees Jose Salamanca, Pepito Amora, and Thomas Baggett

were named as defendants for their role in operating another

vessel involved in the spill, the "Balsa 37." 

 4See 33 U.S.C. §§ 2713-2714. 

Appellees Bouchard Transportation (Bouchard), as owner and operator

of the vessel "Tug Captain Fred Bouchard" and barge "B. 155," and

Maritrans Operating Partners (Maritrans), as owner and operator of

the vessel "Seafarer" and barge "Ocean 255," (collectively,

Appellees) as the "responsible parties" for the spill.3 The

Appellants brought this action individually and on behalf of

several plaintiff classes to recover business, property, and

tourist damages sustained as a result of the spill. The complaint

alleged liability under OPA's citizen suit provisions and various

Florida statutory and common-law theories.

Appellees Bouchard and Maritrans moved to dismiss the

complaint for lack of subject matter jurisdiction. According to

Appellees, federal subject matter jurisdiction did not exist

because Appellants had failed to comply with OPA's claims

presentation procedure. Conforming to OPA,4

 Bouchard and Maritrans

had organized a claims clearinghouse to identify, process, and

settle claims arising from the spill. Appellees took the position

that resort to this claims presentation process is a mandatory

condition precedent to any OPA lawsuit, and that Appellants'

failure to present their claims rendered them unripe for judicial

resolution. Appellees also disputed the existence of federal

diversity jurisdiction because several of the named plaintiffs

shared Florida citizenship with defendant Thomas Baggett.

In responding to Appellees' motions, Appellants never claimed
 5

Appellants did not allege compliance with the claims

presentation procedure until their reply brief. Assuming,

arguendo, that Appellants now are asserting compliance with OPA's

claims presentation provision, we decline to address the issue

because we generally do not address issues first raised in a

reply brief. Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542

(11th Cir.1994). Moreover, even assuming that the alleged

post-dismissal claims presentation could render this case moot,

the issue before us is a classic example of one "capable of

repetition, yet evading review." See Murphy v. Hunt, 455 U.S.

478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982); Naturist

Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520-21 (11th Cir.1992). 

 6

See 26 U.S.C.A. § 9509 (West 1989 & Supp.1994); 33

U.S.C.A. §§ 2701(11) & 2712. 

 7Appellants do not appeal the district court's finding that

diversity jurisdiction did not exist. See Boca Ciega, 844

F.Supp. at 1516. 

that they satisfied OPA's claims presentation requirement.5

Instead, they maintained that the claims presentation requirement

only applies to actions seeking to recover from the OPA-created

cleanup fund (Fund),6 not to actions brought directly against the

responsible parties. Appellants also argued that the district

court possessed diversity jurisdiction over their state law claims.

In February 1994, the district court ruled in favor of

Appellees and granted their motions to dismiss. Boca Ciega Hotel,

Inc. v. Bouchard Transp. Co., 844 F.Supp. 1512 (M.D.Fla.1994).

This appeal follows.

II. DISCUSSION

The only issue before us is whether the district court

correctly found that compliance with OPA's claims presentation

requirement is a mandatory condition precedent to the existence of

jurisdiction over private actions brought under the Act.7

A. Standard of Review

 Statutory interpretation is a question of law over which we
exercise de novo review. Barnett Bank of Marion County, N.A. v.

Gallagher, 43 F.3d 631, 633 (11th Cir.1995).

B. The Oil Pollution Act of 1990

1. The Act's Plain Text.

 It is axiomatic that the interpretation of a statute must

begin, and usually ends, with the text of the statute. Estate of

Cowart v. Nicklos Drilling Co., --- U.S. ----, ----, 112 S.Ct.

2589, 2594, 120 L.Ed.2d 379 (1992); United States v. Kirkland, 12

F.3d 199, 202 (11th Cir.1994). When interpreting the text, we give

undefined terms their plain, ordinary, and most natural meaning.

Asgrow Seed Co. v. Winterboer, --- U.S. ----, ----, 115 S.Ct. 788,

793, 130 L.Ed.2d 682 (1995); Brown v. Gardner, --- U.S. ----, ----

, 115 S.Ct. 552, 555, 130 L.Ed.2d 462 (1994).

 The text of OPA's claims presentation provision states:

(a) Presentation

Except as provided in subsection (b) of this section

[delineating presentation to the Fund], all claims for removal

costs or damages shall be presented first to the responsible

party or guarantor....

....

(c) Election

If a claim is presented in accordance with subsection (a)

of this section and—

(1) each person to whom the claim is presented denies all

liability for the claim, or

(2) the claim is not settled by any person by payment

within 90 days after the date upon which (A) the claim

was presented, or (B) advertising was begun pursuant to

section 2714(b) of this title [delineating the claims

clearinghouse procedures], whichever is later,

the claimant may elect to commence an action in court against

the responsible party or guarantor or to present the claim to

the Fund.
 8

Defined as "any person or government who presents a claim

for compensation...." 33 U.S.C.A. § 2701(4). 

33 U.S.C.A. § 2713 (emphasis supplied). OPA defines a "claim" as

"a request, made in writing for a sum certain, for compensation for

damages or removal costs resulting from an incident." 33 U.S.C.A.

§ 2701(3). "Damages" are "specified in section 2702(b) of this

title." 33 U.S.C.A. § 2701(5). Section 2702(b)'s definition of

damages clearly includes the relief sought by Appellants in this

case. See 33 U.S.C.A. § 2702(b)(2)(B), (D), and (E).

Appellants do not claim that the language of § 2713 is

ambiguous. Nor could they. Appellants' complaint constitutes a

"claim" as OPA defines that term. Section 2713 is very clear that

"all claims ... shall be presented first to the responsible

party...." Congressional use of the word "shall" in § 2713(a) is

naturally read to place a mandatory condition on all claims. See

Mallard v. United States Dist. Court for the Southern Dist. of

Iowa, 490 U.S. 296, 300-02, 109 S.Ct. 1814, 1818, 104 L.Ed.2d 318

(1989). In contrast, no reading of § 2713(a)'s language suggests

that Congress intended to limit its applicability to claims against

the Fund.

The language of § 2713(c)'s election of remedies provision

bolsters our interpretation of § 2713(a). Section 2713(c) allows

a claimant8 whose "claim is presented in accordance with subsection

(a)" to "elect to commence an action in court against the

responsible party ... or to present the claim to the Fund." 33

U.S.C.A. § 2713(c) (emphasis supplied). The natural reading of §

2713(c) is that claimants like Appellants, filing "in court against
the responsible part[ies]," as well as claimants seeking recovery

from the Fund, must present their claims in accordance with §

2713(a), supporting our conclusion that § 2713(a) applies to all

claims. In contrast, accepting Appellants' interpretation of §

2713(a) would make parts of § 2713(c) superfluous or nonsensical,

a result to be avoided when interpreting statutes. See Ratzlaf v.

United States, --- U.S. ----, ----, 114 S.Ct. 655, 659, 126 L.Ed.2d

615 (1994).

2. The Act's Structure and Purpose.

 Despite the clarity of OPA's plain language, Appellants argue

that limiting the claims presentation requirement to claims against

the Fund is more consistent with the overall structure and purpose

of the Act. While discovery of the plain meaning of an unambiguous

statute will almost always end our inquiry, in rare and exceptional

circumstances, we may decline to follow the plain meaning of a

statute because overwhelming extrinsic evidence demonstrates a

legislative intent contrary to the text's plain meaning. Hallstrom

v. Tillamook County, 493 U.S. 20, 28-30, 110 S.Ct. 304, 310, 107

L.Ed.2d 237 (1989); Garcia v. United States, 469 U.S. 70, 73-75,

105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984); Kirkland, 12 F.3d at

202. We therefore turn to Appellants' contention that the

structure and purpose of OPA so clearly contradicts the plain

meaning of the claims presentation provision that we should limit

that provision to claims against the Fund.

 Appellants' reliance on the "overall purpose" of OPA—which

they claim is "to expand the liability of responsible parties"—is

misplaced. Courts have long recognized that statutes, especially
large, complex statutes like OPA, are the result of innumerable

compromises between competing interests reflecting many competing

purposes and goals. Therefore, "vague notions" about a statute's

overall purpose cannot be allowed "to overcome the words of its

text regarding the specific issue under consideration." Mertens v.

Hewitt Associates, --- U.S. ----, ----, 113 S.Ct. 2063, 2071, 124

L.Ed.2d 161 (1993) (emphasis in original). In short, "[w]e will

not attempt to adjust the balance between ... competing goals that

the text adopted by Congress has struck." Id. at ----, 113 S.Ct.

at 2072.

 Moreover, Appellants present nothing from OPA's text and

little from its legislative history to convince us that expanded

liability was the only, or even primary goal of the Act. On the

contrary, passages from the legislative history support Appellees'

claim that one goal of the claims presentation provision was to

temper the Act's increased liability with a congressional desire to

encourage settlement and avoid litigation. See, e.g., H.R.Rep. No.

242, 101st Cong., 1st Sess., pt. 2 at 66 (1989); 135 Cong.Rec.,

101st Cong., 1st Sess. H7962 (Nov. 2, 1989) (remarks of Rep. Lent).

See also Johnson v. Colonial Pipeline Co., 830 F.Supp. 309, 310

(E.D.Va.1993). Even if Appellants could produce textual evidence

of an overall congressional purpose, the pursuit of broad policy

goals in some portions of a statute generally does not demonstrate

an intent to alter the plain statutory command of another

provision. See Federal Election Comm'n v. NRA Political Victory

Fund, --- U.S. ----, ----, 115 S.Ct. 537, 542, 130 L.Ed.2d 439

(1994).
 Appellants' claim that OPA's preservation of state oil spill

remedies, 33 U.S.C.A. § 2718(a), contradicts § 2713's plain meaning

fails for the same reason. While the side-by-side co-existence of

state remedies requiring no presentation and OPA remedies requiring

presentation might be relevant if we were interpreting a facially

ambiguous statute, the clarity of § 2713(a) forecloses that

possibility. A general statutory provision like OPA's savings

clause does not trump the more specific command of § 2713(a). See

Morales v. TWA, Inc., 504 U.S. 374, ----, 112 S.Ct. 2031, 2037, 119

L.Ed.2d 157 (1992); Green v. Bock Laundry Machine Co., 490 U.S.

504, 523, 109 S.Ct. 1981, 1992, 104 L.Ed.2d 557 (1989).

Finally, Appellants' policy objections to the claims

presentation requirement are directed at the wrong forum. As the

Supreme Court noted when construing the notice provision of the

Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.A.

§ 6972 (West 1989 & Supp.1994),—a provision similar to the one now

before us—"we are not at liberty to create an exception where

Congress has declined to do so." Hallstrom, 493 U.S. at 26, 110

S.Ct. at 309. "In the long run, experience teaches that strict

adherence to the procedural requirements specified by the

legislature is the best guarantee of evenhanded administration of

the law." Id. at 31, 110 S.Ct. at 311 (quoting Mohasco Corp. v.

Silver, 447 U.S. 807, 825-27, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532

(1980)). If Appellants perceive a policy shortcoming caused by

OPA's claims presentation requirement, that shortcoming "arises as

a result of the balance struck by Congress," Hallstrom, 493 U.S. at

30, 110 S.Ct. at 311, and is properly remedied by congressional
action.

Having found nothing in the text or legislative history of OPA

remotely approaching the type of extraordinarily clear evidence

needed to justify departing from the plain meaning of a statute's

text, we turn to Appellants' remaining argument.

3. The CERCLA Analogy.

 Appellants devoted a considerable amount of time and space in

their briefs and at oral argument to the proposition that OPA's

similarity with the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601-9675

(West Supp.1994), requires us to interpret OPA's claims provision

consistently with CERCLA's provision, which limits the presentation

requirement to claims asserted against CERCLA's Fund. See 42

U.S.C.A. § 9612(a). See, e.g., United States v. Carolina

Transformer Co., 978 F.2d 832, 841 (4th Cir.1992) (holding that

CERCLA's claims presentation provision only applies to claims

asserted against the Fund). Appellants' argument is without merit.

The differences between OPA and CERCLA are more important and

significant than the similarities which Appellants rely upon.

Unlike OPA's claims provision, which states that "all claims ...

shall be presented ...," CERCLA's claims provision states that

"[a]ll claims which may be asserted against the Fund ... shall be

presented." Compare 33 U.S.C.A. § 2713(a) with 42 U.S.C.A. § 9612

(emphasis supplied). This significant textual change does not

suggest that courts should interpret OPA's claims provision as

having the same scope as CERCLA's. On the contrary, the change in

the text, combined with evidence that Congress was aware of CERCLA
 9

There is evidence in OPA's text, compare 33 U.S.C.A. §

2713(c), with 42 U.S.C.A. § 9612(a), and legislative history, see

S.Rep. No. 94, 101st Cong., 1st Sess., 2 (1989), that Congress

was aware of, and occasionally borrowed from, CERCLA when

enacting OPA. But contrary to Appellants' argument, when that

fact is coupled with a comparison of the respective claims

procedures' text, the most logical conclusion is that Congress

rejected the CERCLA limitation when adopting OPA's claims

presentation provision. 

when it enacted OPA,9 suggests that Congress intended the change in

OPA's language to have substantive consequences and purposely

rejected the CERCLA approach limiting the presentation requirement

to those claims asserted against the Fund. See Brown, --- U.S. at

----, 115 S.Ct. at 556; NRA, --- U.S. at ----, 115 S.Ct. at 541-

42.

Appellants' invocation of the doctrine of reading statutes in

pari materia is misplaced. While it is true that similar statutes

should be read consistently, see, e.g., Morales, 504 U.S. at ----,

112 S.Ct. at 2037, that general rule has no bearing in this case.

First of all, the doctrine of reading statutes in pari materia only

makes sense when the word or phrase being interpreted has acquired

special, non-literal significance as a legal term of art. See

Molzof v. United States, 502 U.S. 301, 307-09, 112 S.Ct. 711, 716,

116 L.Ed.2d 731 (1992) (quoting Morissette v. United States, 342

U.S. 246, 263-65, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952)).

Appellants fail to identify any word or phrase in § 2713 which has

become a legal term of art. If Appellants are suggesting that all

claims presentation provisions should be interpreted consistent

with CERCLA's, then their argument flies in the face of clear

precedent to the contrary. See Hallstrom, 493 U.S. at 28-31, 110

S.Ct. at 310-11 (holding that RCRA's notice provision is a
condition precedent to all claims); National Envtl. Foundation v.

ABC Rail Corp., 926 F.2d 1096, 1097 (11th Cir.1991) (holding that

Clean Water Act's notice provision is a condition precedent to all

claims.).

Second, the doctrine of reading statutes in pari materia

suggests that Congress presumably knows and adopts the "cluster of

ideas" attached to the borrowed term of art, and resort to the

doctrine should occur "unless otherwise instructed." See Molzof,

502 U.S. at 307, 112 S.Ct. at 716 (quoting Morissette, 342 U.S. at

263-65, 72 S.Ct. at 250). Here, where the text of the statutory

provision "otherwise instructs," id., the doctrine of reading

statutes in pari materia has no place. Appellants' argument that

OPA's claims presentation requirement should be read consistently

with CERCLA's therefore is rejected.

In conclusion, Appellants have presented nothing which even

approaches the sort of extraordinary showing of contrary

legislative intent we require before departing from the plain

meaning of a clear statutory text. We therefore hold that the

clear text of § 2713 creates a mandatory condition precedent

barring all OPA claims unless and until a claimant has presented

her claims in compliance with § 2713(a) and either: (1) all

responsible parties deny all liability; or (2) the claim is not

settled by payment within 90 days after (A) the claim was

presented, or (B) advertising was begun under section 2714(b) of

the Act, whichever is later. 33 U.S.C.A. § 2713(c).

C. Consequence of Dismissal

All parties agree that the district court's dismissal should
not be treated as a dismissal with prejudice. Appellants remain

free to refile this action, if and when they comply with OPA's

claims presentation procedure. See also Hallstrom, 493 U.S. at 31-

33, 110 S.Ct. at 312 (holding that after dismissal, plaintiffs may

refile suit after compliance with RCRA's 60-day notice

requirement). Cf. United States v. Daniel Good Real Property, ---

U.S. ----, ----, 114 S.Ct. 492, 506-07, 126 L.Ed.2d 490 (1993)

(stating that congressional failure to specify a consequence for

noncompliance with a statute's timing requirement counsels against

dismissal for noncompliance).

III. CONCLUSION

We hold that the district court correctly interpreted §

2713(a) as creating a mandatory condition precedent to bringing any

claims under OPA. Consequently, the district court was correct

when it granted the Appellees' motions to dismiss for lack of

subject matter jurisdiction.

AFFIRMED.