In Re: Katrina Canal ( 2009 )


Menu:
  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 30, 2009
    No. 07-30412                    Charles R. Fulbruge III
    Clerk
    IN RE: KATRINA CANAL BREACHES LITIGATION
    -----------------------------------------
    Maureen O’DWYER, et al.
    Plaintiffs-Appellants
    v.
    UNITED STATES OF AMERICA
    Defendant-Appellee
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    2:06-CV-1885
    Before GARWOOD, GARZA, and OWEN, Circuit Judges.
    PER CURIAM:*
    Plaintiffs-appellants, who suffered injuries due to the flooding associated
    with Hurricane Katrina, appeal the district court’s dismissal of their tort and
    admiralty claims against the United States for lack of subject matter jurisdiction
    due to appellants’ failure to exhaust administrative remedies. For the following
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR . R. 47.5.4.
    reasons, we AFFIRM.
    I. FACTS AND PROCEEDINGS BELOW
    On August 29, 2005, Hurricane Katrina battered the Louisiana and
    Mississippi Gulf coasts. New Orleans was hit especially hard, in large part due
    to the catastrophic flooding that resulted when numerous levees around the city
    failed. Appellants are a group of Louisiana citizens who lost property and loved
    ones in the flooding. Appellants brought a class-action suit against the United
    States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and
    the Suits in Admiralty Act, 46 U.S.C. app. § 741 et seq. (current version at 46
    U.S.C. § 30901 et seq.), alleging that the United States Army Corps of Engineers
    (the Corps) negligently designed, constructed, and maintained several man-
    made canals in the New Orleans area, thereby causing their injuries.1
    The district court consolidated appellants’ suit with a number of other
    similar actions within In re: Katrina Canal Breaches Consolidated Litigation
    (E.D. La. No. 05-4182). The district court later dismissed appellants’ claims for
    lack of subject matter jurisdiction, because appellants had failed to exhaust their
    administrative remedies both for their tort claims under the FTCA and for their
    admiralty claims, which the district court determined arose, if at all, under the
    Admiralty Extension Act, 46 U.S.C. app. § 740 (current version at 46 U.S.C. §
    30101). Without any certification of final judgment under Federal Rule of Civil
    1
    The district court noted that:
    “The focus of plaintiffs’ allegations concern the Government’s alleged failure
    to ‘ensure the competent design, construction, inspection, maintenance and
    operation of an entire navigable waterway system, consisting of the MRGO,
    the Gulf Intracoastal Waterway, the Industrial Canal, the London Avenue
    Canal and the Seventeenth Street Canal.’ (Complaint, ¶ XII). Plaintiffs also
    allege that the Government failed to ‘properly prepare for and respond to the
    needs of the People, prior to and in the aftermath of Hurricane KATRINA.’”
    (Complaint, ¶ XIII).”
    2
    Procedure 54(b), appellants filed this timely appeal.
    II. APPELLATE JURISDICTION
    Before addressing the merits of this appeal, we must first consider
    whether this court has appellate jurisdiction. As noted above, this action was
    consolidated with numerous other cases within In re: Katrina Canal Breaches
    Consolidated Litigation. The Government argues that, because this suit is part
    of a consolidation and appellants failed to obtain a Rule 54(b) certification, the
    district court’s order dismissing appellants’ complaint was not a final judgment
    affording us appellate jurisdiction under 28 U.S.C. § 1291. The Government
    stresses that there are numerous proceedings still pending before the district
    court in this consolidated action, a number of which were filed by the same
    appellants now before this court. Therefore, the Government contends that the
    district court’s order of dismissal was interlocutory and we have no jurisdiction.
    Except in limited circumstances, this court may only exercise appellate
    jurisdiction over the final judgments of district courts.2               See 28 U.S.C. §§
    1291–1292. In order to be final, a judgment “must adjudicate the rights and
    liabilities of all parties properly before the court.” Witherspoon v. White, 
    111 F.3d 399
    , 401 (5th Cir. 1997). However, where there are multiple parties or
    claims in a single suit, upon request the district court may enter a final
    judgment as to certain parties or claims without deciding the entire case,
    thereby rendering those decisions final and appealable. F ED. R. C IV. P. 54(b).
    2
    Appellants argue in the alternative that, should this court determine that the
    district court’s order was interlocutory and we lack jurisdiction under 28 U.S.C. § 1291, we
    still have jurisdiction pursuant to 28 U.S.C. § 1292(a)(3), which furnishes this court with
    jurisdiction over interlocutory decrees “determining the rights and liabilities of the parties
    to admiralty cases in which appeals from final decrees are allowed.” Because we
    ultimately conclude that we have jurisdiction under 28 U.S.C. § 1291, we need not and do
    not consider this argument.
    3
    When a suit is part of a consolidated action, whether or not a Rule 54(b)
    certification is required as a predicate for appeal depends largely upon the
    extent to which the suits are consolidated. See Rd. Sprinkler Fitters v. Cont’l
    Sprinkler, 
    967 F.2d 145
    , 149 (5th Cir. 1992).
    As a general rule, suits that are consolidated merely for reasons of
    convenience and judicial economy retain their separate character for purposes
    of appeal. In re Transtexas Gas Corp., 
    303 F.3d 571
    , 577 (5th Cir. 2002) (citing
    Johnson v. Manhattan Ry. Co., 
    53 S. Ct. 721
    , 727–28 (1933)). However, if the
    suits have essentially merged so as to become a single action, this court will deny
    appellate jurisdiction in the absence of a Rule 54(b) certification. E.g., Rd.
    
    Sprinkler, 967 F.2d at 149
    –50; Ringwald v. Harris, 
    675 F.2d 768
    , 771 (5th Cir.
    1982)). In determining whether a Rule 54(b) certification is necessary, this court
    follows no “rigid rule,” but rather “inquire[s] into the nature of and extent of
    consolidation intended by the court.” Rd. 
    Sprinkler, 967 F.2d at 149
    . The
    seminal case in this circuit to address this issue is Ringwald, in which we
    considered “whether a post-consolidation single judgment or order that disposes
    of all parties and claims in one of the originally separate suits, but not the other,
    is governed by . . . Rule 
    54(b).” 675 F.2d at 770
    . We held that where
    “there is a proper consolidation of causes that could have been filed
    as a single suit, and the consolidation is clearly for all purposes, the
    provisions of Rule 54(b) must be complied with notwithstanding that
    the judgment or order in question disposes of all the claims and
    parties in one of the original actions.”
    
    Id. at 771.
          In this particular suit, the district court dismissed all claims against the
    4
    only defendant, the United States.3 The fact that this action was incorporated
    into In re: Katrina Canal Breaches Consolidated Litigation does not render the
    district court’s judgment interlocutory. That consolidation encompasses dozens
    of suits filed by literally thousands of plaintiffs. As a practical matter, it is
    highly unlikely that all of those actions could have originally been filed as a
    single suit.    See 
    id. Moreover, it
    is clear from the district court’s various
    consolidation orders that these suits were clearly not consolidated “for all
    purposes.” See 
    id. Rather, the
    cases were consolidated solely for purposes of
    convenience and judicial economy due to the vast number of related cases filed
    in the Eastern District of Louisiana following Katrina.4
    Therefore, we find that the district court’s judgment was final, and it was
    unnecessary for appellants to obtain a Rule 54(b) certification in order for this
    court to exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
    III. STANDARD OF REVIEW
    We review de novo a district court’s dismissal under Federal Rule of Civil
    Procedure 12(b)(1) for lack of subject matter jurisdiction, applying the same
    3
    This key fact distinguishes this case from O’Dwyer, et al. v. United States, et al., in
    which we refused to exercise appellate jurisdiction under 28 U.S.C. § 1291. See 277 F.
    App’x 512, 514 (5th Cir. May 9, 2008) (unpublished). In that case, the same appellants now
    before this court brought similar claims against the United States and various private
    parties. See 
    id. The district
    court dismissed the claims against the United States, but not
    those brought against the other defendants. 
    Id. On appeal,
    we determined that the
    district court’s judgment was not final and that we lacked appellate jurisdiction, because
    there remained numerous claims against the other defendants still pending in the district
    court. 
    Id. In contrast,
    here the United States is the sole defendant, and there are no
    outstanding claims remaining in the district court.
    4
    We also note that, on at least two occasions, this court has exercised appellate
    jurisdiction over other suits arising from within In re: Katrina Canal Breaches
    Consolidated Litigation, despite the apparent lack of a Rule 54(b) certification. See, e.g., In
    re Katrina Canal Breaches Litigation, 
    2009 WL 1162552
    (5th Cir. Apr. 30, 2009); In re
    Katrina Canal Breaches Litigation, 
    495 F.3d 191
    (5th Cir. 2007).
    5
    standards as the district court. LeClerc v. Webb, 
    419 F.3d 405
    , 413 (5th Cir.
    2005). The party asserting jurisdiction has the burden to prove that jurisdiction
    is proper when challenging a Rule 12(b)(1) motion. Ramming v. United States,
    
    281 F.3d 158
    , 161 (5th Cir. 2001).
    IV. DISCUSSION
    Appellants claim that the district court erred when it dismissed (without
    prejudice) both their FTCA and their admiralty claims for lack of subject matter
    jurisdiction. We address each of those arguments in turn.
    A. Federal tort claims
    The FTCA waives sovereign immunity for federal tort claims brought
    against the United States. 28 U.S.C. § 2674. A district court has no jurisdiction
    to consider FTCA claims unless the claimant has exhausted his administrative
    remedies with the appropriate federal agency prior to filing suit. 
    Id. § 2675(a);
    Gregory v. Mitchell, 
    634 F.2d 199
    , 203–04 (5th Cir. 1981). Here, appellants
    readily admit that they have not exhausted their administrative remedies, but
    they argue that they should not be required to do so because those efforts would
    be futile. We decline this invitation to circumvent the jurisdictional limitations
    established by Congress when it chose to subject the United States to tort
    liability under the FTCA. As the Supreme Court has stated in response to a
    similar argument, “we will not read futility or other exceptions into statutory
    exhaustion requirements where Congress has provided otherwise.” Booth v.
    Churner, 
    121 S. Ct. 1819
    , 1825 n.6 (2001). Thus, the district court did not err in
    dismissing appellants’ federal tort claims for lack of jurisdiction.
    B. Admiralty Claims
    Respecting the asserted admiralty claims, the district court stated:
    “Plaintiffs also contend that this Court has jurisdiction over these
    claims pursuant to 28 U.S.C. § 1331(1) and pursuant to the Suits in
    6
    Admiralty Act (46 U.S.C. § 741, et seq.) (‘SAA’). However, because
    all the damages alleged by plaintiffs occurred on land, in order to
    pursue such a claim, a litigant must file an administrative claim
    under the Admiralty Extension Act, 46 U.S.C. App. § 740 (‘AEA’).
    The AEA provides in pertinent part:
    The admiralty and maritime jurisdiction of the United
    States shall extend to and include all cases of damage
    or injury, to person or property, caused by a vessel on
    navigable water, notwithstanding that such damage or
    injury be done or consummated on land.
    In any such case suit may be brought in rem or in
    personam according to the principles of law and the
    rules of practice obtaining in cases where the injury or
    damage has been done and consummated on navigable
    water: Provided, That as to any suit against the United
    States for damage or injury done or consummated on
    land by a vessel on navigable waters, the Public Vessels
    Act or Suits in Admiralty Act, as appropriate, shall
    constitute the exclusive remedy for all causes of action
    arising after June 19, 1948, and for all causes of action
    where suit has not been hitherto filed under the
    Federal Tort Claims Act: Provided further, That no suit
    shall be filed against the United States until there shall
    have expired a period of six months after the claim has
    been presented in writing to the Federal agency owning
    or operating the vessel causing the injury or damage.
    46 App. U.S.C. § 740.
    The AEA clearly provides that when a suit is brought
    pursuant to SAA and the resulting damage occurs on land, no suit
    shall be filed against the United States until six months after the
    filing of an administrative claim which has been presented in
    writing to the appropriate federal agency. Loeber v. Bay Tankers,
    Inc., 
    924 F.2d 1340
    (5th Cir. 1992). Thus, the Motion to Dismiss is
    meritorious in this respect as well.”
    7
    We agree.
    The district courts are vested with original jurisdiction over suits arising
    in admiralty. 28 U.S.C. § 1333(1). Traditionally, a tort must have occurred on
    navigable waters to be actionable in admiralty. Jerome B. Grubart, Inc. v. Great
    Lakes Dredge & Dock Co., 
    115 S. Ct. 1043
    , 1047 (1995). Based on that general
    rule, the Suits in Admiralty Act (SAA) waives sovereign immunity for the United
    States in admiralty cases arising from injuries occurring on navigable waters.
    46 U.S.C. app. § 742. However, with the passage of the Admiralty Extension Act
    (AEA) in 1948, Congress extended admiralty jurisdiction, and the United States’
    waiver of sovereign immunity, to suits involving injuries on land caused by a
    vessel on navigable waters. 
    Id. at 1047–48;
    see also 46 U.S.C. app. § 740.
    Here, appellants expressly disclaim any reliance on the AEA.5 Thus, if we
    are to find admiralty jurisdiction at all, it must be under the SAA, unaided by
    the AEA. A tort is deemed to have occurred “where the alleged wrong took effect
    rather than to the locus of the allegedly tortious conduct.” Egorov, Puchinsky,
    Afanasiev & Juring v. Terriberry, Carroll & Yancey, 
    183 F.3d 453
    , 456 (5th Cir.
    1999).    Because the complained-of injuries in this case occurred on land,
    admiralty jurisdiction cannot attach under the SAA, unaided by the AEA.
    Therefore, the district court did not err in dismissing appellants’ admiralty
    claims for lack of subject matter jurisdiction because they had not filed
    administrative claims as required by the AEA. Loeber v. Bay Tankers, Inc., 
    924 F.2d 1340
    , 1342 (5th Cir. 1991).
    V. CONCLUSION
    5
    For example, appellants expressly assert in their brief, inter alia, that “the
    Admiralty Extension Act is inapplicable to appellants’ claims against the Government” and
    “nowhere in appellants’ pleadings, as supplemented and amended, is the Admiralty
    Extension Act mentioned in any way, shape or form.” Thus, we need not determine
    whether any proximate causation by one or more vessels on navigable waters is alleged.
    8
    We conclude that, despite the fact that this suit is part of a consolidated
    action with numerous ongoing proceedings in district court, the dismissal of
    appellants’ claims was a final judgment affording this court appellate
    jurisdiction pursuant to 28 U.S.C. § 1291. We also hold that, as appellants did
    not exhaust their administrative remedies as required under the FTCA, the
    district court correctly determined that it lacked jurisdiction to consider
    appellants’ federal tort claims. Finally, because appellants’ injuries did not take
    effect on navigable waters but rather all on land, and because they did not file
    administrative claims against the United States under the AEA and disclaim
    jurisdiction thereunder, we find that appellants have failed to establish
    admiralty jurisdiction under the SAA. Therefore, the district court’s judgment
    dismissing appellants’ claims for lack of subject matter jurisdiction is
    AFFIRMED.
    9