           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
             _________________________________

                          No. 98-30558
                        Summary Calendar
               _________________________________

VOYD B BURGER,

                 Plaintiff - Appellant-Cross-Appellee,

          v.

MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S.
Bellatrix; ET AL,

                 Defendants,

MILITARY SEA LIFT COMMAND, as Owner of the U.S.N.S.
Bellatrix; BAY SHIP MANAGEMENT INC; AVONDALE SHIPYARD INC;
RICHARD P MARTUCCI, Captain; EDWARD L GIBSON; ARTHUR C
CLARK; JOSEPH CONWELL; ERIC BARDES,

                 Defendants - Appellees,

AMERICAN MARITIME OFFICERS UNION,

                 Defendant - Appellee-Cross-Appellant.

             ---------------------------------
       Appeals from the United States District Court
           for the Eastern District of Louisiana
                       (97-CV-2795-T)
             ---------------------------------
                        June 30, 1999

Before EMILIO M. GARZA, BENAVIDES and STEWART, 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this opinion should not be published and is not precedent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.

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                                I.

     Voyd Burger appeals from the judgment of the district

court dismissing with prejudice all of his claims against

appellees.   American Maritime Officers Union cross-appeals

from the district court’s denial of Rule 11 sanctions

against Burger.    We affirm in part and modify in part the

district court’s dismissal of Burger’s claims.      We also

affirm the district court’s denial of Rule 11 sanctions.

     This suit grows out of allegations by Voyd Burger that,

while employed aboard the U.S.N.S. Bellatrix, he was treated

unlawfully from January 3, 1995, until he was terminated on

March 3, 1995.    Burger has filed three lawsuits based on

these same allegations.    In February 1996, he filed a 55-

page complaint against numerous defendants in the United

States District Court for the Northern District of Florida

(“Burger I”).    His claims were dismissed by the Florida

district court and Burger appealed to the Court of Appeals

for the Eleventh Circuit.    In July 1997, Burger filed a

second complaint in the Eastern District of Louisiana that

was almost identical to the one filed in the Florida

district court (“Burger II”).       The Louisiana district court

dismissed Burger’s claims with prejudice under the first-to-

file rule and Burger appealed to this court.      In September

1997, Burger filed this, his third suit, again in the

Eastern District of Louisiana (“Burger III”).      The Louisiana

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district court dismissed with prejudice under the first-to-

file rule those claims that had already been raised in

Burger I and Burger II, and dismissed on the merits claims

that were either new or against new parties.   In August

1998, the Court of Appeals for the Eleventh Circuit affirmed

the Florida district court’s decision in Burger I.     In

January 1999, a panel of this court affirmed the Louisiana

district court’s decision in Burger II except to the extent

that we reversed its decision to dismiss with prejudice

claims that the Florida district court had dismissed on

jurisdictional grounds.

     Upon this mass of accreted judicial proceedings, we now

consider Burger’s appeal in Burger III.   Seven of the nine

defendants in this suit, including Avondale Shipyard, Inc.

(“Avondale”), American Maritime Officer’s Union (“AMOU”),

Bay Ship Management, Inc. (“BSM”), and four of BSM’s

employees, Richard Martucci, Edward Gibson, Arthur Clark,

and Joseph Conwell, were also defendants in Burger I.       The

two new defendants are Military Sealift Command (“MSC”), the

federal government agency that owns the U.S.N.S. Bellatrix,

and Eric Bardes, another employee of BSM.   Burger’s

complaint alleges three causes of action:   involuntary

servitude, failure to pay portal to portal pay in violation

of 29 U.S.C. § 251 et seq., and improper discharge.    Burger


                             3
also moved to join Joseph Sauzek, a fellow seaman on the

Bellatrix, in a class action.       Based upon Burger’s

repetitive filings, AMOU and BSM filed a motion seeking Rule

11 sanctions against Burger.

     The district court dismissed with prejudice Burger’s

improper discharge and involuntary servitude claims against

the seven previously-named defendants under the first-to-

file rule.   The portal-to-portal claims against all of the

defendants were dismissed based on Burger’s failure to

identify an express contractual right to such relief.     The

remaining claims against Eric Bardes were dismissed under

Rule 8 for Burger’s failure to state the grounds for

Bardes’s liability.   The remaining claims against MSC were

dismissed on summary judgment for Burger’s failure to comply

with the “exclusivity provision” of the Suits in Admiralty

Act, 46 U.S.C. § 741-52.   The district court also denied

Burger’s motion to certify a class action for failure to

satisfy Rule 23’s numerosity or adequate representation

requirements.    Finally, the district court denied AMOU and

BSM’s motion for sanction.    Burger and AMOU timely appealed

these rulings.

                               II.

A. First-to-File Rule




                                4
     1. Improper Discharge Claims

     We affirm the district court’s decision to dismiss

Burger’s improper discharge claims against the seven

previously-named defendants under the first-to-file rule.

Burger asserted an identical claim for improper discharge

against the same defendants in Burger I and that case was

pending before the Court of Appeals for the Eleventh Circuit

when the district court entered its order.   The first-to-

file rule was therefore properly invoked to avoid

duplicative litigation.   See Save Power Ltd. v. Syntek

Finance Corp., 121 F.3d 947, 950-51 (5th Cir. 1997).

     However, while dismissal was proper under the first-to-

file rule, the district court erred in dismissing all of

Burger’s improper discharge claims with prejudice instead of

without prejudice.   Instead, the district court should have

left Burger an opportunity to refile those claims that were

not ultimately considered on the merits by another court.

Our decision in this regard is identical to our prior

decision in Burger II, see Burger v. American Maritime

Officers Union, No. 97-31099 (5th Cir. filed Jan. 27, 1999),

and we adopt the reasoning of that decision en toto.      AMOU

was the only previously-named defendant that the Florida

district court exercised personal jurisdiction over.    For

that reason, the district court’s dismissal with prejudice


                              5
of Burger’s improper discharge claims against AMOU was

proper.   As to the other six previously-named defendants--

Avondale, BSM, Martucci, Gibson, Clark, and Conwell--we

modify the district court’s judgment such that the dismissal

of Burger’s improper discharge claims against them is

without prejudice.

     2.   Involuntary Servitude Claims

     Upon reviewing the complaints filed in Burger I and

Burger II, we are unable to find any claim that was

substantively similar to Burger’s claim here that his

treatment aboard the Bellatrix amounted to a deprivation of

his Thirteenth Amendment right to be free from involuntary

servitude.   It was therefore error for the district court to

dismiss Burger’s claim under the first-to-file rule.     See

Syntec, 121 F.3d at 950-51 (describing requirement that

there be substantial overlap between two suits for first-to-

file rule to apply).

     Nonetheless, we affirm the district court’s dismissal

of Burger’s involuntary servitude claims on the alternative

ground raised below that he failed to state a claim upon

which relief could be granted.    To prove a claim of

involuntary servitude, an employee must show that there was

no conceivable means of avoiding the continued service or

confinement.   See Brooks v. George County, 84 F.3d 157, 162


                              6
(5th Cir. 1996).   “‘When the employee has a choice, even

though it is a painful one, there is no involuntary

servitude . . .    A showing of compulsion is thus a

prerequisite to proof of involuntary servitude.’”      Id.

(quoting Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir.

1990)).   Burger’s complaint alleged that “crew members of

the USNS Bellatrix were given the choice of working for free

or be [sic] fired under some pretext.”   That painful choice,

even if true, would not support a claim of involuntary

servitude.   We affirm the district court’s dismissal of

Burger’s involuntary servitude claims with prejudice.

B. Portal-to-Portal Claims

     We affirm the district court’s decision to dismiss

Burger’s claims under the Portal-to-Portal Act of 1947, 29

U.S.C. § 251 et seq.   The Act limits the liability of

employers who fail to compensate employees for travel or

other activities which are not an “integral part of and

indispensable to their principal activities.”    Steiner v.

Mitchell, 350 U.S. 247, 255 (1956); see 29 U.S.C. § 254(a).

An employer only becomes liable if such activities are

compensable under either an express provision of a written

or unwritten contract or a custom or practice.    See 29

U.S.C. § 254(b).   Other than a single statement that

“Defendant Martucci refused to remit to plaintiff portal to

                              7
portal funds to pay for transportation,” Burger’s complaint

does not specifically allege what activities entitled him to

compensation under the Act.    Moreover, the complaint does

not, as required by § 4(b) of the Act, describe any

contract, custom, or practice that could override the limits

on liability established by § 4(a) of the Act.    Thus, even

if all of the allegations in Burger’s complaint were taken

as true, he would not have established a claim for portal-

to-portal compensation.    We therefore find that the district

court properly dismissed Burger’s Portal-to-Portal Act

claims for failure to state a claim.

C.   Claims Against Eric Bardes

     We affirm the district court’s dismissal with prejudice

of claims against Eric Bardes.     The only allegation against

Bardes in Burger’s complaint states that Bardes, along with

other defendants, “ma[de] plaintiff and other seamen work

after hours without pay,” which the complaint describes as

“involuntary servitude.”   As previously stated, Burger’s

complaint does not state a cognizable involuntary servitude

claim.   As this was the only allegation made against Bardes,

Burger’s claims against him were properly dismissed.

D.   Claims Against Military Sealift Command

     We also affirm the district court’s grant of MSC’s

motion for summary judgment.    Under the Public Vessels Act,


                               8
46 U.S.C. § 781 et seq., the United States waives its

sovereign immunity to suits brought for damages caused by

public vessels.     See id. at § 781.    This remedy, however, is

exclusive of any cause of action against any agent,

employee, or agency of the United States.       See id. at § 745

incorporated by 46 U.S.C. § 782; Favorite v. Marine

Personnel and Provisioning, Inc., 955 F.2d 382, 385-88

(finding claim against agent of the United States barred by

§ 745 exclusivity provision).       Here, Burger has filed suit

against MSC, an agency of the United States.       Because his

suit is based upon damages incurred while employed aboard a

public vessel of the United States, his exclusive remedy was

to file suit against the United States, itself.       Moreover,

even if Burger’s suit had properly been instituted against

the United States, it would have been barred by the two-year

statute of limitation contained in 42 U.S.C. 745.       We

therefore affirm the district court’s grant of MSC’s motion

for summary judgment.

E.   Certification of Class Action

     We affirm the district court’s denial of Burger’s

motion to certify a class action.       Burger seeks to certify a

class that consists of two plaintiffs which he would then

represent pro se.     Such a class clearly would not satisfy

the numerosity or adequate representation requirement in

                                9
Rule 23(a).   The district court properly denied Burger’s

motion.

F.   Sanctions

     Finally, we affirm the district court’s denial of

AMOU’s motion for sanctions.    We review a district court’s

denial of Rule 11 sanctions for an abuse of discretion.        See

American Airlines, Inc. v. Allied Pilots Association, 968

F.2d 523, 529 (5th Cir. 1992).       The district court remarked

that Burger, by repetitively filing suits against the same

defendants, has come “dangerously close to deliberate

indifference to the court’s rules.”      We agree.   Nonetheless,

the district court found Burger’s actions more the result of

unfamiliarity with the law than wilful disobedience.      We

find no abuse of discretion in this finding.      The district

court’s denial of sanctions is affirmed.

                               III.

     For the foregoing reasons, we affirm the district

court’s dismissal in all respects, except that we modify the

dismissal of Burger’s improper discharge claims against

Avondale, BSM, Martucci, Gibson, Clark, and Conwell such

that the dismissal is now without prejudice.

     AFFIRMED in part, MODIFIED in part, and AFFIRMED AS

MODIFIED.




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