     Case: 13-30824      Document: 00512626181        Page: 1     Date Filed: 05/12/2014




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

                                                                                    FILED
                                     No. 13-30824                               May 12, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk
JOSEPH ALFONSO, IV,

                                                Plaintiff–Appellant,

versus

UNITED STATES OF AMERICA,

                                                Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana




Before JONES, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Joseph Alfonso sued Louisiana national guardsmen under the Federal
Tort Claims Act (“FTCA”) for alleged negligence arising from post-Hurricane
Katrina activities undertaken while they were in federal-pay status. 1 The
FTCA permits recovery against the United States if the federal employees


      1  The FTCA, 28 U.S.C. § 2671, defines “employee of the government” to include mem-
bers of the National Guard while engaged in duty under Title 32, and neither party disputes
that the guardsmen were federal employees under this provision.
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                                       No. 13-30824


would be liable for the same conduct as private individuals under state law. 2
The Louisiana Homeland Security and Emergency Assistance and Disaster Act
(“LHSEADA” or the “immunity statute”), however, grants immunity to the
state and its agents if they were engaged in emergency-preparedness activities.
LA. REV. STAT. § 29:735(A)(1). Finding that the guardsmen were engaged in
such activities, the district court dismissed for want of subject-matter
jurisdiction.
       Alfonso appeals on two principal grounds. First, he claims that the
guardsmen were not engaging in emergency-preparedness activities and are
therefore not immune. Second, he maintains in the alternative that the immu-
nity statute is unconstitutional under a provision of the Louisiana Constitution
that prohibits the legislature from granting immunity to the state in tort
suits. 3 The district court did not address the constitutional question, con-
cluding that it was not implicated in the FTCA context.
       We agree with the district court that under Louisiana law the guards-
men were engaged in emergency-preparedness activities and are therefore
clothed with immunity. We disagree that the constitutional question can be
avoided. Absent guiding caselaw from Louisiana, we decide that―only in this
narrow circumstance―Louisiana’s immunity statute is not unconstitutional as
applied to the guardsmen who are put into the shoes of private individuals for
purposes of the FTCA claim. For that reason, we affirm the judgment of
dismissal.


       2 Willoughby v. United States ex rel. United States Dep’t of the Army, 730 F.3d 476,
479 (5th Cir. 2013), cert. denied, 134 S. Ct. 1307 (2014) (“The FTCA grants a limited waiver
of sovereign immunity and allows tort claims against the United States ‘in the same manner
and to the same extent as a private individual under like circumstances.’”).
       3Alfonso also raises federal constitutional claims and a few other state constitutional
claims that we will discuss only briefly because they lack merit.
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                                         I.
      “We conduct a de novo review of orders granting the Government’s
motion to dismiss an FTCA complaint under Rules 12(b)(1) and 12(b)(6).”
Willoughby, 730 F.3d at 479. Disputed factual findings are reviewed for clear
error. In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189
(5th Cir. 2011); Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May 1981)
(on petition for rehearing). “A district court’s factual findings are clearly erron-
eous only if, after reviewing the record, this Court is firmly convinced that a
mistake has been made. The burden of proof for a Rule 12(b)(1) motion to dis-
miss is on the party asserting jurisdiction.” FEMA Trailer, 646 F.2d at 189.
(internal citation and quotation marks omitted).


                                        II.
      Approximately two-and-one-half months after Hurricane Katrina,
Alfonso was driving his pickup on a highway in St. Bernard Parish when he
encountered a large amount of mud and lost control of his vehicle and was
ejected, sustaining injuries and property damage. He claims that the Louisi-
ana National Guard (the “Guard”) had carried truckloads of mud and dirt
across the highway, resulting in the accumulation of mud.
      The LHSEADA reads, in pertinent part,
     Neither the state nor any political subdivision thereof, nor other
   agencies, nor, except in case of willful misconduct, the agents’ employ-
   ees or representatives of any of them engaged in any homeland security
   and emergency preparedness activities, while complying with or
   attempting to comply with this Chapter or any rule or regulation prom-
   ulgated pursuant to the provisions of this Chapter shall be liable for the
   death of or any injury to persons or damage to property as a result of
   such activity.

LA. REV. STAT. § 29:735(A)(1). The only dispute is whether the Guard was
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conducting emergency-preparedness activities. The LHSEADA defines “emer-
gency preparedness” as “the mitigation of, preparation for, response to, and the
recovery from emergencies or disasters.” LA. REV. STAT. § 29:723(4). “The term
‘emergency preparedness’ shall be synonymous with ‘civil defense’, ‘emergency
management,’ and other related programs of similar name.” Id.
       Relying on deposition testimony and operation orders issued to the
Guard in November 2005—the month of the accident—the district court found
that “the Guard was engaged in debris removal and levee repair near the site
of [Alfonso’s] accident” as a “direct result of Hurricane Katrina,” and therefore
was engaged in emergency-preparedness activity.                These would constitute
activities immune from liability because the LHSEADA applies when “an
emergency situation existed, and [when] the defendant government was oper-
ating in a manner that promoted emergency preparedness and protection of
persons and property.” 4
       Alfonso contends that this is erroneous because the Guard was working
on raising levees, not repairing them, around the time of Alfonso’s accident,
and that does not qualify as emergency-preparedness activity. Indeed, the
immunity statute “was intended to address actions taken pursuant to a par-
ticular emergency, not to general levee construction.” Banks, 990 So. 2d at 34.
But the district court did not clearly err in finding that the Guard was engaged
in debris removal around the time and place of Alfonso’s accident in response
to the emergency created by Hurricane Katrina. Multiple orders were issued
to the Guard less than two weeks before Alfonso’s accident, instructing various



       4Cooley v. Acadian Ambulance, 65 So. 3d 192, 199 (La. App. 4th Cir. 2011). See also
Banks v. Parish of Jefferson, 990 So. 2d 26, 34 (La. App. 5th Cir.), writ denied, 992 So. 2d
1043 (La. 2008) (stating that immunity applies “when the activities complained of are taken
to address a discre[te] or specific condition or event”).
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units to “clear and grub” the nearby Arpent Canal levee and “conduct[] debris
removal.” The 205th Guard battalion, which Alfonso admits was at the site of
his accident on the following day, received an “Emergency Preparedness”
order, ten days before the accident, instructing the battalion to “[c]ontinue
clearing and grubbing” debris near the accident site and to “[u]se a dozer to
push trash” to one side of the highway.
      The court additionally relied on testimony from Colonel Douglas Mouton
of the Guard, who oversaw the post-Katrina relief efforts of the Guard’s 225th
Engineer Group in St. Bernard Parish. Mouton testified that for the Guard to
fulfill its responsibilities of making roads accessible and mitigating potential
hazards, it needed to move a “tremendous amount” of debris and dirt from
nearby streets, levees, and water structures.           The Deputy Director of the
St. Bernard Department of Homeland Security and Emergency Preparedness
also confirmed the debris removal.
      Alfonso further contends that the United States does not qualify for
LHSEADA immunity because his accident occurred seventy-eight days after
Hurricane Katrina, creating too tenuous a “temporal connection” between the
storm and his accident to qualify the Guard’s activity as “emergency prepar-
edness.” The statute, however, contemplates no particular time limit, and at
least one other district court has found post-Katrina activities later in time
than the activities here to be covered by the act. See Lemoine v. United States,
No. 07-8478, 2009 WL 2496561 (E.D. La. Aug. 13, 2009). The district court did
not err in finding that sufficient temporal proximity existed between Hurricane
Katrina and Alfonso’s accident. 5 The LHSEADA therefore applies.



      5Alfonso raises an additional argument that the Guard’s activities do not qualify as
“emergency preparedness” because they did not take place in sufficiently close geographic
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       Alfonso also argues that the LHSEADA is unconstitutional because it
violates the state constitution, which provides, “Neither the state, a state
agency, nor a political subdivision shall be immune from suit and liability in
contract or for injury to person or property.” LA. CONST. art. XII, § 10(A). Even
if the statute were otherwise unconstitutional, its plain language additionally
immunizes private persons engaged in official activities. Further, the FTCA
states that liability exists “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)(1) (emphasis
added).    Therefore, Alfonso cannot recover under the FTCA against these
guardsmen in federal-pay status so long as the state’s immunity statute is in
force with respect to individual agents of the state.


                                            III.
       Alfonso argues that the LHSEADA violates his right to access state
courts as guaranteed by Article 1, Section 22 of the Louisiana Constitution
because dismissal of both his federal and state cases pursuant to LHSEADA
immunity leaves him with “no remedy for injury to his person and property.”
That theory is erroneous in three respects. First, Section 22 guarantees a state
citizen’s right to access state courts, not federal district courts. Second, it is
well established under Louisiana law that Section 22 does not bar the legisla-
ture from creating various areas of statutory immunity. Crier v. Whitecloud,
496 So. 2d 305, 309−10 (La. 1986). Third, the appeal in Alfonso’s state-court
case has yet to be decided.



proximity to his accident. Even if that argument has merit, Alfonso failed to raise it in the
district court, so it is waived.
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      Alfonso finally contends that the LHSEADA is unconstitutional because
it violates his state and federal rights to due process and equal protection
because it denies him an opportunity to be heard and because it creates a
“class” of persons who cannot recover for injury resulting from emergency-
preparedness activity. Alfonso offers no legal support for these propositions,
and we note that if they were true, any immunity statute of any sort would be
unconstitutional. We therefore reject them.
      The judgment of dismissal is AFFIRMED.




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