                  REVISED NOVEMBER 6, 2009
           IN THE UNITED STATES COURT OF APPEALS
                                           United States Court of Appeals
                    FOR THE FIFTH CIRCUIT           Fifth Circuit

                                                                            FILED
                                                                         November 3, 2009

                                       No. 08-30963                    Charles R. Fulbruge III
                                                                               Clerk

IN RE: KATRINA CANAL BREACHES LITIGATION


PARFAIT FAMILY; HELEN FRANK, Individually and as administratix of
the succession of Richard Frank, and on behalf of any and all heirs, survivors,
relatives, and beneficiaries of the deceased; MICHELLE JONES, “Mink”;
KENNETH WILLIAMS; LADANYA WILLIAMS; ET AL

                                                  Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CV-4182;
                                  2:07-CV-3500


Before KING, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-30963

      The case in this appeal is another in a group of over forty cases currently
pending related to Hurricane Katrina that have been consolidated for pretrial
purposes in the Eastern District of Louisiana. Plaintiffs-appellants, former
residents of the Lower Ninth Ward in New Orleans, filed tort and admiralty
claims against the United States of America for injuries due to flooding. The
present appeal is taken from the district court’s dismissal of these claims for lack
of subject-matter jurisdiction based on plaintiffs’ failure to exhaust
administrative remedies. For the reasons discussed below, we affirm.
                 I. Factual and Procedural Background
      Plaintiffs sued the United States, along with several Louisiana state and
private entities, for personal injury and property damage suffered due to flooding
from the Industrial Canal, the Mississippi River Gulf Outlet, and the Gulf
Intracoastal Waterway in the wake of Hurricane Katrina. Plaintiffs’ claims
against the United States included that the United States Army Corps of
Engineers violated federal statutory and state tort law by defectively designing
and negligently maintaining these waterways and by failing to ensure that at
least one privately-owned barge was properly moored. Jurisdiction as to the
claims against the United States was premised on the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671, et seq., the Suits in Admiralty Act (SAA), 46 U.S.C.
§ 30901 et seq., and the Public Vessels Act (PVA), 46 U.S.C. § 31101, et seq.
      The district court dismissed the claims against the United States for lack
of subject-matter jurisdiction. The court concluded that plaintiffs had failed to
exhaust administrative remedies under the FTCA, which waives sovereign
immunity only if the claimant has “first presented the claim to the appropriate
Federal agency” and the agency has rejected or taken no action on the claim
within six months of filing. 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2. The court
ruled that a December 14, 2006, letter that the plaintiffs submitted to the Army
Corps of Engineers did not fulfill the exhaustion requirement because it lacked

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sufficient detail to allow the agency to review the claim. Noting that plaintiffs’
alleged injuries had occurred on land, the district court also concluded that the
SAA and PVA, both of which waive sovereign immunity for admiralty claims and
do not contain an exhaustion requirement, did not provide bases for jurisdiction.
The district court noted that the Admiralty Extension Act (AEA), 46 U.S.C.
§ 30101, which extends the SAA and PVA to cover instances in which a vessel
on navigable water causes damage on land, could provide a basis for jurisdiction
but concluded that the AEA’s exhaustion requirement, which is similar to that
of the FTCA,1 had not been met. This appeal followed. Plaintiffs challenge the
merits of the district court’s decision and also argue for reversal based on what
they allege was the district court’s improper failure to recuse.
                         II. The Challenge on the Merits
       As plaintiffs acknowledged in their appellate briefing, this is not the first
time that a court in this circuit has addressed precisely these issues between
precisely these parties. Plaintiffs raised the same allegations in a complaint and
third-party claims against the United States in a related action. In that action,
the district court dismissed for lack of subject-matter jurisdiction, concluding
that only the FTCA or AEA provided bases for jurisdiction and that plaintiffs
had failed to meet the exhaustion requirements of those statutes.                       In re
Complaint of Ingram Barge Co., 435 F. Supp. 2d 524 (E.D. La. 2006). After that
dismissal, plaintiffs re-filed these same claims against the United States in an
amended third-party complaint. The district court dismissed on the basis of res
judicata. In re Complaint of Ingram Barge Co., Nos. 05-4419, 05-4237 (E.D. La.
Jan. 16, 2007) (No. 490). Plaintiffs then filed a motion for reconsideration
contending, among other things, that a letter submitted to the Army Corps of

       1
         The AEA’s administrative exhaustion requirement provides that “[a] civil action
[against the United States] may not be brought until the expiration of the 6-month period after
the claim has been presented in writing to the agency owning or operating the vessel causing
the injury or damage.” 46 U.S.C. § 30101(c)(2).

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Engineers that was virtually identical to the letter submitted in the present
action met the exhaustion requirement. The district court concluded that the
letter lacked sufficient detail to meet the exhaustion requirement and denied
reconsideration. In re Complaint of Ingram Barge Co., Nos. 05-4419, 05-4237,
2007 WL 550060 (E.D. La. Feb. 15, 2007). This court affirmed these dismissals.
Ingram Barge Co. v. Parfait Family (In re Complaint of Ingram Barge Co.), No.
08-30626, 2009 WL 2447716 (5th Cir. Aug. 10, 2009).
      Plaintiffs’ counsel in the present case also filed substantially similar
claims against the United States on behalf of different plaintiffs in the
consolidated action. The district court dismissed these claims for lack of subject
matter jurisdiction, concluding, like the district court in Ingram Barge, that only
the FTCA or AEA provided bases for jurisdiction and that plaintiffs had failed
to meet the exhaustion requirements of those statutes. Berthelot v. Boh Bros.
Constr. Co., L.L.C., Nos. 05-4182, 06-1885, 2007 WL 1239132 (E.D. La. Apr. 27,
2007). This court affirmed the dismissal. O’Dwyer v. United States (In re
Katrina Canal Breaches Litig.), No. 07-30412, 2009 WL 1868980 (5th Cir. June
30, 2009).
      Plaintiffs’ appellate briefing in the present case was filed after the appeals
were fully briefed in the above cases but before the Fifth Circuit opinions in
those cases issued. In their briefing for the present case, plaintiffs asserted that
the issues presented here are “virtually identical to and/or overlap with those
already fully briefed” for the other Fifth Circuit panels and declined to further
brief these issues. Plaintiffs urged instead that this panel incorporate by
reference the arguments briefed in the other appeals, arguing “that it would
serve no useful purpose to require [plaintiffs] to rebrief matters which have
already been exhaustively briefed, several times over.”
      The appeals in the above cases have now been decided against plaintiffs.
We find—as plaintiffs anticipated—that these panel opinions and the district

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court opinions that they affirm address all of the issues that arise in the present
case. We are bound by Ingram Barge, 2009 WL 2447716, which involved
identical issues and parties, and find persuasive Katrina Canal Breaches, 2009
WL 1868980, which involved identical issues and reached the same result. See
5TH CIR. R. 47.5.4 (unpublished opinions are precedential “under the doctrine of
res judicata”).2     Based on these precedents, we affirm the district court’s
dismissal for lack of subject-matter jurisdiction.
       We also note that even if the present appeal involved issues other than
those addressed in the panel opinions—and plaintiffs have not made such an
assertion—these issues would be waived for failure to brief. Plaintiffs have not
briefed any challenge to the district court’s ruling in the present case, choosing
instead to incorporate by reference arguments made in the related cases.
Arguments merely incorporated by reference are not properly considered on
appeal. See Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007)
(refusing to consider arguments before the district court that plaintiff
incorporated by reference on appeal, concluding that this was a failure to
adequately brief); Katz v. King, 627 F.2d 568, 575 (1st Cir. 1980) (“If counsel
desires our consideration of a particular argument, the argument must appear
within the four corners of the brief filed in this court.”). Accordingly, plaintiffs
have waived any arguments challenging the merits of the district court’s
dismissal.
                          III. The Alleged Judicial Bias



       2
         “Four elements must be met for a claim to be barred by res judicata: ‘(1) the parties
must be identical in the two actions; (2) the prior judgment must have been rendered by a
court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the
same claim or cause of action must be involved in both cases.’” Oreck Direct, LLC v. Dyson,
Inc., 560 F.3d 398, 401 (5th Cir. 2009) (quoting Peoples State Bank v. Gen. Elec. Capital Corp.
(In re Ark-La-Tex Timber Co.), 482 F.3d 319, 330 (5th Cir. 2007). The Ingram Barge case
supplies all four elements.

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      Plaintiffs also contend that the district court’s dismissal should be
reversed because the dismissal was “motivated, at least in part, by actual bias
and prejudice and other judicial misconduct” by the district court. The source
of the alleged bias is the district court’s alleged “close personal friend[ship]” with
one of the attorneys that represented the state of Louisiana as a defendant in
this case. Plaintiffs unsuccessfully moved the district court for disqualification
under 28 U.S.C. §§ 144 and 455. For the reasons discussed in O’Dwyer v. United
States, No. 08-30962, slip op. at 10–11 (5th Cir. Nov. 3, 2009) (in which the
plaintiffs, who were represented by the same counsel as plaintiffs in the present
case, raised identical claims regarding the same district judge’s failure to
recuse), we conclude that plaintiffs have failed to show that the district court
abused its discretion in denying their motion to disqualify.
                                 IV. Conclusion
      Accordingly, we AFFIRM the judgment of the district court.




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