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

                                                                            FILED
                                                                           July 21, 2008

                                     No. 08-30004                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


FREDDIE C. GADDIS

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA

                                                  Defendant-Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                  3:07-CV-1081


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Freddie Gaddis (“Gaddis”) filed a complaint against the United
States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346, for injuries
sustained in a 1977 workplace accident while he was an employee of the Union
Pacific Corporation. In his complaint, he alleges that Union Pacific is an agency
of the United States.       The Government filed a motion to dismiss contending



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 08-30004

that, among other reasons, the federal courts are without subject matter
jurisdiction, because the Union Pacific is not an agency of the United States, and
therefore Gaddis’s claim is not cognizable under the Federal Tort Claims Act.
The district court agreed and dismissed the case without prejudice for want of
subject matter jurisdiction.
       “Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute . . . which is not to be expanded
by judicial decree. . . . It is to be presumed that a cause lies outside this limited
jurisdiction . . . and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). We take judicial notice that Union Pacific is not a federal
agency but a private corporation.1 Therefore tort claims against Union Pacific
are not cognizable under the Federal Tort Claims Act because Union Pacific is
not a federal agency. See Bazile v. Burge, 66 F.3d 321, 1995 WL 535100, at *1
(5th Cir. August 7, 1995) (unpublished) (dismissing a Federal Tort Claims Act
claim for lack of subject matter jurisdiction, because defendant Houston Metro
Transit Authority was not a “federal agency”); 28 U.S.C. § 2671 (“[T]he term
‘Federal agency’ includes the executive departments, the judicial and legislative
branches, the military departments, independent establishments of the United
States, and corporations primarily acting as instrumentalities or agencies of the
United States, but does not include any contractor with the United States.”); see
also Lewis v. United States, 680 F.2d 1239, 1240-41 (9th Cir. 1982). The plaintiff
has not satisfied his burden in establishing federal jurisdiction over his suit.
       AFFIRMED.



       1
         See Daniels v. Union Pac. R. Co., 480 F. Supp.2d 191, 196 (D. D.C. 2007); Union
Pacific Corporation, Annual Report (Form 10-K), at 3 (Feb. 28, 2008) (noting that Union Pacific
was incorporated in Utah in 1969).


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