Don Carraway v. USA

Case: 10-31171 Document: 00511779851 Page: 1 Date Filed: 03/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 7, 2012
No. 10-31171 Lyle W. Cayce
Clerk
DON CARRAWAY,
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA, on behalf of Federal Emergency
Management Agency; W. CRAIG FUGATE,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:09-cv-01526-JTT-JDK
Before KING, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Don Carraway (“Carraway”) applied for disaster relief
from the Federal Emergency Management Agency (“FEMA”) in the form of
financial assistance for home and vehicle repairs and dental services. FEMA
awarded Carraway $382.40 for loss to personal property but denied him further
relief. Carraway subsequently sued FEMA, seeking additional relief funds. On
July 9, 2010, the district court granted FEMA’s motion to dismiss Carraway’s
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-31171 Document: 00511779851 Page: 2 Date Filed: 03/07/2012
No. 10-31171
claims, holding that the claims were barred by the doctrine of sovereign
immunity. On August 26, 2010, Carraway filed a request for leave to file an out
of time motion for reconsideration, which the district court granted. On October
12, 2010, Carraway filed a “Motion for New Trial/Reconsideration” and several
other post-judgment motions, including a motion to waive the appeal deadline
for the judgment of dismissal, a motion requesting that the court file a waiver
of sovereign immunity, and a motion for entry of default judgment against the
government. The district court denied Carraway’s motions in orders dated
October 20 and 28, 2010.
On November 22, 2010, Carraway filed a pro se handwritten notice of
appeal. The notice, however, did not indicate the judgment or order Carraway
sought to challenge.1 Under Federal Rule of Appellate Procedure 3(c)(1)(B), a
“notice of appeal must . . . designate the judgment, order, or part thereof being
appealed.” “Rule 3’s dictates are jurisdictional in nature, and their satisfaction
is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248 (1992)
(citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 (1988)). Although
we may “permit[] imperfect but substantial compliance with [the] technical
requirement[s]” of Rule 3, we may not “waiv[e] the requirement[s] altogether.”
Torres, 487 U.S. at 315–16. In reviewing Carraway’s notice of appeal, we
conclude that it was not merely “technically at variance with the letter of [Rule
3],” but it instead completely failed to comply with the rule’s requirements.
Smith, 502 U.S. at 248 (alteration in original) (citation and internal quotation
marks omitted); cf. Bailey v. Cain, 609 F.3d 763, 766–67 (5th Cir. 2010) (ruling
that where “the district court had entered four orders and a final judgment,” a
1
If Carraway sought to challenge the district court’s dismissal of his claims, this
challenge would be barred as untimely. See FED. R. APP. P. 4(a)(1)(B); see also Tamez v.
Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (“The timely filing of an appeal is mandatory and
jurisdictional.”) (internal quotation marks and citation omitted).
2
Case: 10-31171 Document: 00511779851 Page: 3 Date Filed: 03/07/2012
No. 10-31171
motion that lacked “a specific reference to the judgment or order from which
appeal was taken . . . did not meet the requirement of filing a timely notice of
appeal”). Therefore, we DISMISS Carraway’s appeal for lack of jurisdiction.
3