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

                                                 FILED
                                                                           June 30, 2009

                                      No. 07-30412                    Charles R. Fulbruge III
                                                                              Clerk



IN RE: KATRINA CANAL BREACHES LITIGATION
-----------------------------------------

Maureen O’DWYER, et al.

                                                  Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA

                                                  Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                  2:06-CV-1885


Before GARWOOD, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiffs-appellants, who suffered injuries due to the flooding associated
with Hurricane Katrina, appeal the district court’s dismissal of their tort and
admiralty claims against the United States for lack of subject matter jurisdiction
due to appellants’ failure to exhaust administrative remedies. For the following


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
reasons, we AFFIRM.
                  I. FACTS AND PROCEEDINGS BELOW
      On August 29, 2005, Hurricane Katrina battered the Louisiana and
Mississippi Gulf coasts. New Orleans was hit especially hard, in large part due
to the catastrophic flooding that resulted when numerous levees around the city
failed. Appellants are a group of Louisiana citizens who lost property and loved
ones in the flooding. Appellants brought a class-action suit against the United
States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and
the Suits in Admiralty Act, 46 U.S.C. app. § 741 et seq. (current version at 46
U.S.C. § 30901 et seq.), alleging that the United States Army Corps of Engineers
(the Corps) negligently designed, constructed, and maintained several man-
made canals in the New Orleans area, thereby causing their injuries.1
      The district court consolidated appellants’ suit with a number of other
similar actions within In re: Katrina Canal Breaches Consolidated Litigation
(E.D. La. No. 05-4182). The district court later dismissed appellants’ claims for
lack of subject matter jurisdiction, because appellants had failed to exhaust their
administrative remedies both for their tort claims under the FTCA and for their
admiralty claims, which the district court determined arose, if at all, under the
Admiralty Extension Act, 46 U.S.C. app. § 740 (current version at 46 U.S.C. §
30101). Without any certification of final judgment under Federal Rule of Civil



      1
       The district court noted that:
      “The focus of plaintiffs’ allegations concern the Government’s alleged failure
      to ‘ensure the competent design, construction, inspection, maintenance and
      operation of an entire navigable waterway system, consisting of the MRGO,
      the Gulf Intracoastal Waterway, the Industrial Canal, the London Avenue
      Canal and the Seventeenth Street Canal.’ (Complaint, ¶ XII). Plaintiffs also
      allege that the Government failed to ‘properly prepare for and respond to the
      needs of the People, prior to and in the aftermath of Hurricane KATRINA.’”
      (Complaint, ¶ XIII).”

                                            2
Procedure 54(b), appellants filed this timely appeal.
                         II. APPELLATE JURISDICTION
       Before addressing the merits of this appeal, we must first consider
whether this court has appellate jurisdiction. As noted above, this action was
consolidated with numerous other cases within In re: Katrina Canal Breaches
Consolidated Litigation. The Government argues that, because this suit is part
of a consolidation and appellants failed to obtain a Rule 54(b) certification, the
district court’s order dismissing appellants’ complaint was not a final judgment
affording us appellate jurisdiction under 28 U.S.C. § 1291. The Government
stresses that there are numerous proceedings still pending before the district
court in this consolidated action, a number of which were filed by the same
appellants now before this court. Therefore, the Government contends that the
district court’s order of dismissal was interlocutory and we have no jurisdiction.
       Except in limited circumstances, this court may only exercise appellate
jurisdiction over the final judgments of district courts.2               See 28 U.S.C. §§
1291–1292. In order to be final, a judgment “must adjudicate the rights and
liabilities of all parties properly before the court.” Witherspoon v. White, 111
F.3d 399, 401 (5th Cir. 1997). However, where there are multiple parties or
claims in a single suit, upon request the district court may enter a final
judgment as to certain parties or claims without deciding the entire case,
thereby rendering those decisions final and appealable. F ED. R. C IV. P. 54(b).



       2
         Appellants argue in the alternative that, should this court determine that the
district court’s order was interlocutory and we lack jurisdiction under 28 U.S.C. § 1291, we
still have jurisdiction pursuant to 28 U.S.C. § 1292(a)(3), which furnishes this court with
jurisdiction over interlocutory decrees “determining the rights and liabilities of the parties
to admiralty cases in which appeals from final decrees are allowed.” Because we
ultimately conclude that we have jurisdiction under 28 U.S.C. § 1291, we need not and do
not consider this argument.

                                              3
When a suit is part of a consolidated action, whether or not a Rule 54(b)
certification is required as a predicate for appeal depends largely upon the
extent to which the suits are consolidated. See Rd. Sprinkler Fitters v. Cont’l
Sprinkler, 967 F.2d 145, 149 (5th Cir. 1992).
      As a general rule, suits that are consolidated merely for reasons of
convenience and judicial economy retain their separate character for purposes
of appeal. In re Transtexas Gas Corp., 303 F.3d 571, 577 (5th Cir. 2002) (citing
Johnson v. Manhattan Ry. Co., 53 S.Ct. 721, 727–28 (1933)). However, if the
suits have essentially merged so as to become a single action, this court will deny
appellate jurisdiction in the absence of a Rule 54(b) certification. E.g., Rd.
Sprinkler, 967 F.2d at 149–50; Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir.
1982)). In determining whether a Rule 54(b) certification is necessary, this court
follows no “rigid rule,” but rather “inquire[s] into the nature of and extent of
consolidation intended by the court.” Rd. Sprinkler, 967 F.2d at 149. The
seminal case in this circuit to address this issue is Ringwald, in which we
considered “whether a post-consolidation single judgment or order that disposes
of all parties and claims in one of the originally separate suits, but not the other,
is governed by . . . Rule 54(b).” 675 F.2d at 770. We held that where
      “there is a proper consolidation of causes that could have been filed
      as a single suit, and the consolidation is clearly for all purposes, the
      provisions of Rule 54(b) must be complied with notwithstanding that
      the judgment or order in question disposes of all the claims and
      parties in one of the original actions.”

Id. at 771.
      In this particular suit, the district court dismissed all claims against the




                                         4
only defendant, the United States.3 The fact that this action was incorporated
into In re: Katrina Canal Breaches Consolidated Litigation does not render the
district court’s judgment interlocutory. That consolidation encompasses dozens
of suits filed by literally thousands of plaintiffs. As a practical matter, it is
highly unlikely that all of those actions could have originally been filed as a
single suit.    See id.    Moreover, it is clear from the district court’s various
consolidation orders that these suits were clearly not consolidated “for all
purposes.” See id. Rather, the cases were consolidated solely for purposes of
convenience and judicial economy due to the vast number of related cases filed
in the Eastern District of Louisiana following Katrina.4
       Therefore, we find that the district court’s judgment was final, and it was
unnecessary for appellants to obtain a Rule 54(b) certification in order for this
court to exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                            III. STANDARD OF REVIEW
       We review de novo a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction, applying the same



       3
         This key fact distinguishes this case from O’Dwyer, et al. v. United States, et al., in
which we refused to exercise appellate jurisdiction under 28 U.S.C. § 1291. See 277 F.
App’x 512, 514 (5th Cir. May 9, 2008) (unpublished). In that case, the same appellants now
before this court brought similar claims against the United States and various private
parties. See id. The district court dismissed the claims against the United States, but not
those brought against the other defendants. Id. On appeal, we determined that the
district court’s judgment was not final and that we lacked appellate jurisdiction, because
there remained numerous claims against the other defendants still pending in the district
court. Id. In contrast, here the United States is the sole defendant, and there are no
outstanding claims remaining in the district court.
       4
        We also note that, on at least two occasions, this court has exercised appellate
jurisdiction over other suits arising from within In re: Katrina Canal Breaches
Consolidated Litigation, despite the apparent lack of a Rule 54(b) certification. See, e.g., In
re Katrina Canal Breaches Litigation, 2009 WL 1162552 (5th Cir. Apr. 30, 2009); In re
Katrina Canal Breaches Litigation, 495 F.3d 191 (5th Cir. 2007).

                                               5
standards as the district court. LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir.
2005). The party asserting jurisdiction has the burden to prove that jurisdiction
is proper when challenging a Rule 12(b)(1) motion. Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001).
                              IV. DISCUSSION
      Appellants claim that the district court erred when it dismissed (without
prejudice) both their FTCA and their admiralty claims for lack of subject matter
jurisdiction. We address each of those arguments in turn.
A. Federal tort claims
      The FTCA waives sovereign immunity for federal tort claims brought
against the United States. 28 U.S.C. § 2674. A district court has no jurisdiction
to consider FTCA claims unless the claimant has exhausted his administrative
remedies with the appropriate federal agency prior to filing suit. Id. § 2675(a);
Gregory v. Mitchell, 634 F.2d 199, 203–04 (5th Cir. 1981). Here, appellants
readily admit that they have not exhausted their administrative remedies, but
they argue that they should not be required to do so because those efforts would
be futile. We decline this invitation to circumvent the jurisdictional limitations
established by Congress when it chose to subject the United States to tort
liability under the FTCA. As the Supreme Court has stated in response to a
similar argument, “we will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.” Booth v.
Churner, 121 S.Ct. 1819, 1825 n.6 (2001). Thus, the district court did not err in
dismissing appellants’ federal tort claims for lack of jurisdiction.
B. Admiralty Claims
      Respecting the asserted admiralty claims, the district court stated:
      “Plaintiffs also contend that this Court has jurisdiction over these
      claims pursuant to 28 U.S.C. § 1331(1) and pursuant to the Suits in

                                        6
     Admiralty Act (46 U.S.C. § 741, et seq.) (‘SAA’). However, because
     all the damages alleged by plaintiffs occurred on land, in order to
     pursue such a claim, a litigant must file an administrative claim
     under the Admiralty Extension Act, 46 U.S.C. App. § 740 (‘AEA’).

           The AEA provides in pertinent part:

           The admiralty and maritime jurisdiction of the United
           States shall extend to and include all cases of damage
           or injury, to person or property, caused by a vessel on
           navigable water, notwithstanding that such damage or
           injury be done or consummated on land.

           In any such case suit may be brought in rem or in
           personam according to the principles of law and the
           rules of practice obtaining in cases where the injury or
           damage has been done and consummated on navigable
           water: Provided, That as to any suit against the United
           States for damage or injury done or consummated on
           land by a vessel on navigable waters, the Public Vessels
           Act or Suits in Admiralty Act, as appropriate, shall
           constitute the exclusive remedy for all causes of action
           arising after June 19, 1948, and for all causes of action
           where suit has not been hitherto filed under the
           Federal Tort Claims Act: Provided further, That no suit
           shall be filed against the United States until there shall
           have expired a period of six months after the claim has
           been presented in writing to the Federal agency owning
           or operating the vessel causing the injury or damage.

46 App. U.S.C. § 740.

            The AEA clearly provides that when a suit is brought
     pursuant to SAA and the resulting damage occurs on land, no suit
     shall be filed against the United States until six months after the
     filing of an administrative claim which has been presented in
     writing to the appropriate federal agency. Loeber v. Bay Tankers,
     Inc., 924 F.2d 1340 (5th Cir. 1992). Thus, the Motion to Dismiss is
     meritorious in this respect as well.”


                                       7
      We agree.
      The district courts are vested with original jurisdiction over suits arising
in admiralty. 28 U.S.C. § 1333(1). Traditionally, a tort must have occurred on
navigable waters to be actionable in admiralty. Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co., 115 S.Ct. 1043, 1047 (1995). Based on that general
rule, the Suits in Admiralty Act (SAA) waives sovereign immunity for the United
States in admiralty cases arising from injuries occurring on navigable waters.
46 U.S.C. app. § 742. However, with the passage of the Admiralty Extension Act
(AEA) in 1948, Congress extended admiralty jurisdiction, and the United States’
waiver of sovereign immunity, to suits involving injuries on land caused by a
vessel on navigable waters. Id. at 1047–48; see also 46 U.S.C. app. § 740.
      Here, appellants expressly disclaim any reliance on the AEA.5 Thus, if we
are to find admiralty jurisdiction at all, it must be under the SAA, unaided by
the AEA. A tort is deemed to have occurred “where the alleged wrong took effect
rather than to the locus of the allegedly tortious conduct.” Egorov, Puchinsky,
Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456 (5th Cir.
1999).    Because the complained-of injuries in this case occurred on land,
admiralty jurisdiction cannot attach under the SAA, unaided by the AEA.
Therefore, the district court did not err in dismissing appellants’ admiralty
claims for lack of subject matter jurisdiction because they had not filed
administrative claims as required by the AEA. Loeber v. Bay Tankers, Inc., 924
F.2d 1340, 1342 (5th Cir. 1991).
                                 V. CONCLUSION

      5
       For example, appellants expressly assert in their brief, inter alia, that “the
Admiralty Extension Act is inapplicable to appellants’ claims against the Government” and
“nowhere in appellants’ pleadings, as supplemented and amended, is the Admiralty
Extension Act mentioned in any way, shape or form.” Thus, we need not determine
whether any proximate causation by one or more vessels on navigable waters is alleged.

                                            8
      We conclude that, despite the fact that this suit is part of a consolidated
action with numerous ongoing proceedings in district court, the dismissal of
appellants’ claims was a final judgment affording this court appellate
jurisdiction pursuant to 28 U.S.C. § 1291. We also hold that, as appellants did
not exhaust their administrative remedies as required under the FTCA, the
district court correctly determined that it lacked jurisdiction to consider
appellants’ federal tort claims. Finally, because appellants’ injuries did not take
effect on navigable waters but rather all on land, and because they did not file
administrative claims against the United States under the AEA and disclaim
jurisdiction thereunder, we find that appellants have failed to establish
admiralty jurisdiction under the SAA. Therefore, the district court’s judgment
dismissing appellants’ claims for lack of subject matter jurisdiction is
                                  AFFIRMED.




                                        9
