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

                                                FILED
                                                             December 23, 2009
                               No. 09-60365
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

FRANK K. ECKER; JUVENILE FEMALE KJE, By and Through Her Father
and Next Friend, Frank K. Ecker,

                                           Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA,

                                           Defendant-Appellee




                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 1:07-CV-1101


Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Appellants Frank Ecker and his daughter sustained serious injuries in
Hancock County, Mississippi, when their Mitsubishi Galant was struck in the
rear by a National Guard military truck driven by Staff Sergeant (“SSG”)
James P. Childs. The Eckers filed a complaint against the United States
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671, et. seq. The
United States moved to dismiss for lack of subject matter jurisdiction because


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 09-60365

the Eckers’ claims did not fall within the FTCA’s waiver of sovereign immunity.
The district court granted the United States’ motion. The Eckers now appeal.
      Following Hurricane Katrina, Mississippi Governor Haley Barbour
declared a State of Emergency pursuant to the Mississippi Emergency
Management Law. See Miss. Code Ann. § 33-15-1(b)(17). The Adjutant General
of the State of Mississippi requested assistance of a National Guard Joint Task
Force to perform command and control for relief efforts. The Georgia National
Guard responded to Mississippi’s Interstate Mutual Aid Request. Staff Sergeant
Childs, a member of the Georgia Army National Guard, was ordered to active
duty to assist in these efforts. At the time of the accident, Childs was acting in
the scope of his employment as a federal employee, albeit subject to the control
of the Adjutant General of Mississippi and thus the Governor of Mississippi.
      This court reviews de novo, applying the same standard as the district
court, dismissal under Fed. Rule of Civ. Proc. 12(b)(1) for lack of subject matter
jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). The
party asserting jurisdiction bears the burden of proof. Id.
      Sovereign immunity ordinarily protects the United States from liability
and deprives courts of subject matter jurisdiction over the claims against it. See
United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961 (1983). The FTCA,
however, effects a limited waiver of sovereign immunity, affording federal court
jurisdiction where the United States shall be liable in tort “in the same manner
and to the same extent as a private individual under like circumstances.”
28 U.S.C. § 2674. Substantively, the United States is liable for damages “caused
by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b).



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                                   No. 09-60365

       To prove that their claims are within the FTCA’s waiver of sovereign
immunity, the appellants must demonstrate that Childs was 1) an employee of
the federal government; 2) acting withing the scope of his employment; and
3) liable under Mississippi law. Because there is no dispute over the first two
elements, the issue here is whether Childs would be liable under Mississippi
law.
       The Mississippi Emergency Management Law (“MEML”) provides
immunity from tort liability, except in cases of willful misconduct, to agents and
representatives of state and other agencies engaged in emergency management
activities.1 The district court noted, that at the time of the accident, Childs was
engaged in precisely such a mission. Consequently, if he were a Mississippi
state or local employee, Childs would be considered an agent or representative
of the state for purposes of § 33-15-21 of the MEML, and he would be entitled to
immunity under the plain language of § 33-15-21(a). Treating the United States
as a private individual in similar circumstances, that is, as a private individual
engaged in emergency management activities for the state of Mississippi, means
the United States is also immune under § 33-15-21.            It follows that the
appellants’ claims are not within the FTCA’s limited waiver of sovereign
immunity, and that the district court lacks subject matter jurisdiction.
       The judgment dismissing the claims is AFFIRMED.




       1
           Miss. Code Ann. § 33-15-21(a) provides:

              Neither the state nor any political subdivision thereof, nor
              other agencies, nor, except in cases of willful misconduct, the
              agents, employees, or representatives of any of them engaged
              in any emergency management activities, while complying
              with or attempting to comply with this article or any rule or
              regulation promulgated pursuant to the provisions of this
              article, shall be liable for the death of or any injury to
              persons, or damages to property, as a result of such activity.

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