Opinion
No. 08-30626 Summary Calendar.
August 10, 2009.
Ashton R. O'Dwyer, Jr., New Orleans, LA, pro se.
Ashton R. O'Dwyer, Jr., New Orleans, LA, for Plaintiffs-Appellants.
Sarang Vijay Damle, Mark Bernard Stern, U.S. Department of Justice, Washington, DC, for Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:05-cv-04237.
Before JOLLY, WIENER, and ELROD, Circuit Judges.
Plaintiffs-Appellants filed tort and admiralty claims against the United States for injuries due to flooding related to Hurricane Katrina. The district court dismissed these claims for lack of subject matter jurisdiction because appellants did not exhaust administrative remedies as required by the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and the Admiralty Extension Act (AEA), 46 U.S.C. app. § 740. We affirm.
The AEA has since been recodified. See Codification of Title 46, Pub.L. No. 109-304, 120 Stat. 1485 (2006); 46 U.S.C. § 30101.
In the wake of Hurricane Katrina, appellants, former residents of the Lower Ninth Ward in New Orleans, suffered personal and property damage from the flooding of the Industrial Canal, the Mississippi River Gulf Outlet, and the Gulf Intracoastal Waterway. Alleging that at least one breach in the canal was caused when a barge broke free from its moorings, appellants sued the barge's owner (Ingram Barge Company), the company chartering it, and the United States. Ingram filed the present action seeking exoneration or limitation of liability, and the district court consolidated the two cases, later dismissing the United States for lack of subject matter jurisdiction. See In re Ingram Barge Co., 435 F.Supp.2d 524 (E.D.La. 2006). This court dismissed appellants' first appeal for lack of jurisdiction, In re Ingram Barge Co., 262 Fed.Appx. 576 (5th Cir. 2008), after which the district court certified the case under Federal Rule of Civil Procedure 54(b). This appeal followed; we have jurisdiction under 28 U.S.C. § 1291.
We review a district court's dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) de novo, applying the same standard as the district court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction bears the burden of proof. Id.
This appeal presents nearly identical issues to another case recently decided by a different panel. See In re Katrina Canal Breaches Litigation (O'Dwyer v. United States), 345 Fed.Appx. 1 (5th Cir. 2009). While not binding precedent, we find this case persuasive. There, we affirmed dismissal of similar claims against the United States because the plaintiffs failed to exhaust administrative remedies as required by the FTCA and the AEA. There, as here, the plaintiffs argued that the Suits in Admiralty Act (SAA), 46 U.S.C. app. § 741 et seq., rather than the AEA applied to their claims. For the same reasons given in that opinion, we affirm the district court's judgment.
First, the FTCA does not admit a futility exception to its exhaustion requirement, see 28 U.S.C. § 2675(a); Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981), nor have appellants demonstrated that they have met this requirement, see In re Ingram Barge Co., 435 F.Supp.2d at 527 n. 3. Thus, the district court properly dismissed appellants' claims that arise under the FTCA.
We do not find the FTCA's third-party-practice exception applicable because appellants are not defendants in any of these proceedings. See 28 U.S.C. § 2675(a); Fed.R.Civ.P. 14(c).
Second, appellants' attempt to shoehorn their claims into the SAA fails because the alleged injuries did not occur on navigable waters. The district court's admiralty jurisdiction under 28 U.S.C. § 1333(1), unaided by the AEA, extends to torts that "occurred on navigable waters." Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). "In determining whether the tort occurred on navigable water, this court looks to 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). Here, the alleged injuries did not occur on navigable waters and the SAA does not extend the district court's admiralty jurisdiction to cover such injuries. Thus, the district court correctly dismissed appellants' admiralty claims.
To the extent appellants' claims may have arisen under the AEA, they are jurisdictionally barred by appellants' failure to exhaust administrative remedies. 46 U.S.C. app. § 740; Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1342 (5th Cir. 1991).
The judgment of the district court is AFFIRMED.