     Case: 10-30451        Document: 00511519865              Page: 1       Date Filed: 06/24/2011




            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                                       June 24, 2011

                                             No. 10-30451                              Lyle W. Cayce
                                                                                            Clerk

IN RE: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY
LITIGATION
------------------------------------------------------------------------------------------------------------

ALANA ALEXANDER, Individually and on behalf of Christopher Cooper and
Erica Alexander,

                                                          Plaintiff - Appellant
v.

UNITED STATES OF AMERICA, through the Federal Emergency
Management Agency

                                                          Defendant - Appellee




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                         USDC No. 2:07-md-01873-KDE-ALC


Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
        Alana Alexander (Alexander) brought this Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671–2680, action on behalf of her minor son, Christopher
Cooper (Cooper), against the Government for injuries allegedly related to

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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Cooper’s exposure to potentially dangerous, high levels of formaldehyde in their
Federal Emergency Management Agency (FEMA) provided emergency housing
unit (hereinafter EHU or trailer). The district court dismissed her claim for lack
of subject matter jurisdiction because it found that the claim was time-barred.
We AFFIRM.
                                          I.
      Following Hurricanes Katrina and Rita, FEMA provided EHUs to the
displaced victims of the storms. The hurricanes’ destruction created an urgent
and immediate need for an unprecedented number of EHUs. In response, FEMA
purchased more than 140,000 new EHUs from manufacturers and dealers.
Alexander and her children, including Cooper, were among the Louisiana
residents who received an EHU. The Alexander family moved into their EHU
in May 2006 and almost immediately noticed a “chemical smell” in the unit that
caused Cooper’s asthma to worsen. Other physical manifestations included
irritation, burning, and tearing of his eyes; irritation and burning of his nasal
membranes; eczema; headaches; difficulty breathing; wheezing; shortness of
breath; and new allergies and worsening allergies. Alexander admits that she
knew the smell came from the EHU. Shortly after moving in, Alexander claims
that she asked an unidentified Government representative or contractor about
the smell. She claims that he told her that that the smell was “nothing to worry
about.” Alexander contends that in reliance on that advice she took no further
action at the time regarding the smell.
      In the summer of 2006, FEMA began receiving reports of formaldehyde-
related problems arising from the EHUs.           In July 2006, FEMA began
distributing flyers warning of formaldehyde dangers in EHUs and urging
residents “to seek medical advice, if necessary.” FEMA commenced several
studies during the next 18 months to better understand the formaldehyde
problem and possible solutions. In July 2007, FEMA distributed a new set of

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flyers entitled “Formaldehyde Fact Sheet” to EHU occupants, again urging them
to seek medical advice if necessary. On July 2, 2008, the Centers for Disease
Control and Prevention issued its “Final Report on Formaldehyde Levels in
FEMA-Supplied [EHUs],” recommending that “FEMA relocate Gulf Coast
residents displaced by Hurricanes Katrina and Rita and still living in trailers.”
       Allegedly unaware of the July 2006 or July 2007 flyers, Alexander claims
that she learned for the first time in December 2007 that formaldehyde
emissions from the EHUs could cause respiratory and asthma problems. On
July 10, 2008, Alexander, on behalf of Cooper, submitted an administrative
claim with FEMA pursuant to the FTCA, claiming that her family’s EHU
contained high levels of off-gassed formaldehyde that had harmed her son.1
Seven months later, while final administrative disposition was still pending,
Alexander filed a complaint in the district court, alleging that the Government
was careless, reckless, grossly negligent, and acted with deliberate indifference
to the health of her son by failing to disclose to him that he was being exposed
to potentially dangerous and high levels of formaldehyde in the trailers.2
Alexander’s complaint was one of thousands relating to formaldehyde in the
FEMA EHUs. The district court selected Alexander as a bellwether plaintiff3
and scheduled her case as the first bellwether trial.



       1
         For purposes of clarity, hereinafter, the claim Alexander filed on Cooper’s behalf will
be referred to as Alexander’s claim
       2
         Alexander also filed an administrative complaint and a lawsuit on her behalf. She
voluntarily dismissed her FTCA claims with prejudice. Her claims are not at issue here. The
lawsuit she brought on Cooper’s behalf also named several private defendants, including Gulf
Stream Coach and Fluor Enterprises. Cooper’s claims against the private defendants are not
at issue here.
       3
        A bellwether plaintiff is a party selected from a larger group of plaintiffs to participate
in a bellwether trial, which is designed “to answer troubling causation or liability issues
common to the universe of claimants.” In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019; see
generally id. at 1019–21 (5th Cir. 1997).

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      Before trial, the Government sought dismissal for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that
Alexander’s administrative claim was filed more than two years after Alexander
became aware that her son was experiencing symptoms of formaldehyde
exposure. On August 21, 2009, the district court granted the Government’s
motion to dismiss for lack of subject matter jurisdiction, finding that Alexander’s
claim accrued in May 2006. Thus, her July 2008 administrative claim was
untimely. Alexander appealed.
                                        II.
                                        A.
      “When addressing a dismissal for lack of subject matter jurisdiction, we
review application of law de novo and disputed factual findings for clear error.”
U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 376 (5th Cir.
2009). “A district court’s factual findings are clearly erroneous only if, after
reviewing the record, this Court is firmly convinced that a mistake has been
made.” Id. “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the
party asserting jurisdiction. Accordingly, the plaintiff constantly bears the
burden of proof that jurisdiction does in fact exist.” Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001) (citations omitted) (discussing motions to
dismiss in the FTCA context).
                                        B.
      The FTCA requires that a tort claim against the federal government be
filed with the appropriate agency within two years after the claim accrues. 28
U.S.C. § 2401(b) (providing that “[a] tort claim against the United States shall
be forever barred unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues”); id. § 2675(a) (providing that
“[a]n action shall not be instituted upon a claim against the United States for
money damages . . . unless the claimant shall have first presented the claim to

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the appropriate Federal agency and his claim shall have been finally denied”).
A party then has six months after the denial of that claim by the administrative
agency to file a tort claim lawsuit. Id. § 2401(b); see also Ramming, 281 F.3d at
162. The FTCA’s statute of limitations is jurisdictional, Flory v. United States,
138 F.3d 157, 159 (5th Cir. 1998), and a claimant is required to meet both filing
deadlines. See Ramming, 281 F.3d at 162.
      Although the FTCA does not define when a claim accrues, it is well-settled
that a tort action under the FTCA accrues when the plaintiff knows or has
reason to know of the alleged injury that is the basis of the action. Id. (internal
quotation marks omitted). On appeal, Alexander argues that the accrual of her
claim was delayed or tolled pursuant to either: (1) the discovery rule, (2)
equitable estoppel, or (3) the continuing tort doctrine. These arguments are
without merit.
      In United States v. Kubrick, the Supreme Court adopted a discovery rule
for FTCA claims. 444 U.S. 111, 123 (1979); see also Dubose v. Kansas City S. Ry.
Co., 729 F.2d 1026, 1030 (5th Cir. 1984) (“Kubrick is not limited to the FTCA or
to medical malpractice cases . . . . The Kubrick rule, we think, represents the
Court’s latest definition of the discovery rule and should be applied in federal
cases . . . .” (citation omitted)). Pursuant to this rule, a claim accrues when a
plaintiff knows both her injury and its cause. Johnson v. United States, 460 F.3d
616, 621 (5th Cir. 2006). Here, there is no dispute that Alexander was aware of
Cooper’s injuries by May 2006. She admits that when her family moved into the
trailer in May 2006, almost immediately, Cooper’s asthma worsened, and he
experienced a plethora of other health issues. The primary dispute is whether
Alexander “knew or in the exercise of reasonable diligence should have
discovered” the cause of Cooper’s injuries in May 2006 such that her claim
accrued at that time. Johnson, 460 F.3d at 621 (citing MacMillan v. United
States, 46 F.3d 377, 381 (5th Cir. 1995)). To this end, Alexander testified that,

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on the first day she moved into the EHU, she and Cooper experienced a
multitude of physical symptoms, she knew that the symptoms were caused by
the smell, and she knew that the smell was coming from the EHU. Alexander
does not dispute these facts. Instead, she argues that her claim could not have
accrued in May 2006 because she did not discover the Government’s role in
Cooper’s injuries until July 2007, when FEMA issued its second round of flyers
about formaldehyde emissions in the EHUs. This argument is not convincing.
      As previously noted, a cause of action accrues when the plaintiff knows of
the injury and its cause. Johnson, 460 F.3d at 621. In light of Alexander’s
testimony, it is clear that she, at the least, had information regarding Cooper’s
injury and its cause by May 2006 that would lead a reasonable person in
Alexander’s position to further investigate the specific cause of that injury.
Moreover, the Supreme Court noted in Kubrick that the discovery rule should
apply where the facts of    “causation may be in the control of the putative
defendant, unavailable to the plaintiff or at least very difficult to obtain.”
Kubrick, 444 U.S. at 123. That is not the situation in the present case. Without
difficulty, Alexander could have established FEMA’s connection to the EHU,
from which the “chemical smell” was emanating. Accordingly, we agree with the
district court that the discovery rule does not apply to Alexander’s claim.
      Alexander’s equitable tolling argument is also unavailing. Alexander
claims that she performed a reasonable inquiry into the specific cause of
Cooper’s injuries when she talked to a Government representative and that an
objectively reasonable person would not have inquired further. She argues that,
because she reasonably relied on the claims of the representative that there was
“nothing to worry about,” the limitations period should be equitably tolled. We
disagree. We have explained that “[l]imitations periods in statutes waiving
sovereign immunity are jurisdictional, and a court exercising its equitable
authority may not expand its jurisdiction beyond the limits established by

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Congress.” Ramming, 281 F.3d at 165.           Because the FTCA waives the
Government’s immunity, in construing the FTCA’s statute of limitations, we will
“not take it upon [ourselves] to extend the waiver beyond that which Congress
intended.” Id. (citing Kubrick, 444 U.S. at 118) (internal quotation marks and
brackets omitted). Therefore, the district court correctly held that Alexander’s
claim should not be equitably tolled.
      Finally, Alexander argues that the continuing tort doctrine should apply
to her FTCA claims. Under the continuing tort doctrine, “the cause of action is
not complete and does not accrue until the tortious acts have ceased.” Gen.
Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 451 (5th Cir. 2007). This court
has yet to decide whether the continuing tort doctrine applies to FTCA claims.
Even assuming that the continuing tort doctrine could apply to Alexander’s
FTCA claim, the district court properly held that it does not apply to this case.
To begin, claim accrual under the FTCA is based on awareness of the injury, not
when the alleged wrongful conduct ends. See Beech v. United States, 345 F.2d
872, 874 (5th Cir. 1965) (“Where the trauma coincides with the negligent act and
some damage is discernible at the time, [§ 2401(b)’s] two-year statute of
limitations begins to run, even though the ultimate damage is unknown or
unpredictable.”). Alexander has not cited any Fifth Circuit caselaw indicating
that accrual should be delayed when the plaintiff knows about the injury and
could have discovered, with a reasonable inquiry, the putative defendant’s, here
the Government’s, potential liability. Furthermore, as the Government points
out, Alexander’s proposed rule would allow a putative plaintiff to circumvent the
statute of limitations bar by continuing voluntarily to subject herself to a
condition she knows to be harmful. Given the jurisdictional nature of the
FTCA’s statute of limitations and the general policy of construing narrowly
statutes that waive sovereign immunity, we decline the invitation to apply the
continuing tort doctrine to the facts presented in this case. See Ramming, 281

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F.3d at 165.
      As neither the discovery rule, equitable estoppel, or the continuing tort
doctrine apply in this case, we conclude that Alexander’s FTCA claim accrued
in May 2006, and thus, her July 2008 administrative filing was untimely.
                                       III.
      For the foregoing reasons, we AFFIRM the district court’s judgment,
dismissing this case for lack of subject matter jurisdiction.




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