DocketNumber: No. 12-30635
Citation Numbers: 713 F.3d 807
Judges: Jolly, Reavley, Smith
Filed Date: 4/9/2013
Status: Precedential
Modified Date: 11/2/2022
This matter arisés from the multidistrict litigation (“MDL”), In re FEMA Trailer Formaldehyde Products Liability Litigation, MDL No. 07-1873. Although the MDL included plaintiffs from Alabama, Mississippi, Texas, and Louisiana, this appeal involves only the Louisiana plaintiffs (hereinafter “plaintiffs”). “All actions centralized in the MDL share factual questions relating to allegations that the [Emergency Housing Units (“EHUs”) ] provided by [the Federal Emergency Management Agency (“FEMA”) ] in response to Hurricanes Katrina and Rita contained materials which emit dangerous levels of formaldehyde.” In re FEMA Trailer Formaldehyde Products Liability Litig. (“FEMA Trailer I”), 668 F.3d 281, 285 (5th Cir.2012) (Alabama and Mississippi
In three separate orders, the district court dismissed the claims for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). As noted in FEMA Trailer I, 668 F.3d at 286, we review de novo a dismissal for lack of subject-matter jurisdiction. The plaintiffs must demonstrate that this court has “the statutory or constitutional power to adjudicate the claim.” Id. (internal quotations and citations omitted). As we already exhaustively explained, id. at 287, this case turns on whether subject-matter jurisdiction exists under the Federal Tort Claims Act (“FTCA”).
First, the plaintiffs appeal the dismissal of their negligence claims relating to the government’s selection and distribution of portable trailers as emergency housing.
Whether the discretionary exception applies involves a two-part inquiry. First, the act must “involve an element of judgment or choice.”
The government made a choice both to provide housing assistance and to utilize travel trailers as EHUs, satisfying the first part of the test, because FEMA “was under no contractual or legal obligation, under the Stafford Act or other federal legislation, to provide the EHUs to disaster victims in response to the disasters.”
The plaintiffs also appeal the dismissal of their claims that FEMA negligently responded to formaldehyde complaints. Under the FTCA, “the Government can only be held liable to the extent that a private individual or a business entity could be held liable under similar circumstances under the laws where the act or omission occurred.” FEMA Trailer I, 668 F.3d at 289. In FEMA Trailer I, we upheld the dismissal of negligent response claims, because Alabama and Mississippi Good Samaritan provisions precluded liability. Id. at 287-90. Because the Louisiana Good Samaritan provision of the Louisiana Homeland Security and Emergency Assistance and Disaster Act (“LHSEA-DA”), La.Rev.Stat. Ann. § 29:733.1 (2006), like the Alabama and Mississippi laws, negates negligence liability for an individual “who, (1) voluntarily, (2) without compensation, (3) allows his property or premises to be used as shelter during or in recovery from a natural disaster,” we apply the analysis of FEMA Trailer I, 668 F.3d at 289, and affirm.
Finally, the Louisiana plaintiffs appeal the dismissal of their claims of gross negligence.
To apply this exception, “we determine whether ‘the chain of causation’ from the alleged negligence to the injury depends upon a misrepresentation by a government agent.”
The judgment of dismissal is AFFIRMED.
. This issue was not appealed in FEMA Trailer I.
. 28 U.S.C. § 2680(a); Freeman v. United States, 556 F.3d 326, 335 (5th Cir.2009). In addition, though the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act”), 42 U.S.C. §§ 5121-5208, does not contain a separate waiver of sovereign immunity, it has a discretionary-function exception with the same meaning as the FTCA exception. 42 U.S.C. § 5148; St. Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307, 319 (5th Cir.2009).
. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)) (internal quotations, alternations, and citations omitted).
. In re Katrina Canal Breaches Litig., 696 F.3d 436, 449 (5th Cir.2012) (quoting Spotts v. United States, 613 F.3d 559, 572 (5th Cir.2010)).
. FEMA Trailer I, 668 F.3d at 290; see also 42 U.S.C. § 5174(b); Ridgely v. FEMA, 512 F.3d 727, 736 (5th Cir.2008) (holding that both the Stafford Act and FEMA’s implementing regulations are written in permissive terms as to the provision and type of housing assistance); 44 C.F.R. §§ 206.101(g), 206.113(a), 206.114(a).
. This court in FEMA Trailer I, 668 F.3d at 290 n. 6, declined to discuss claims of willful misconduct, because the Mississippi and Alabama plaintiffs failed to preserve the argument.
. Life Partners Inc. v. United States, 650 F.3d 1026, 1031 (5th Cir.2011), cert. denied, - U.S. -, 132 S.Ct. 1104, 181 L.Ed.2d 980 (2012). The second inquiry when applying the misrepresentation exception is whether there is an independent federal cause of action that waives sovereign immunity for these type of damages. Commercial Union Ins. Co. v. United States, 928 F.2d 176, 179 (5th Cir.1991). The plaintiffs do not present an alternative ground for waiver of sovereign immunity.