     Case: 17-30768   Document: 00514255741   Page: 1   Date Filed: 11/30/2017




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

                                                                           FILED
                                No. 17-30768
                                                                     November 30, 2017
                              Summary Calendar                          Lyle W. Cayce
                                                                             Clerk

CITY OF WALKER; CITY OF DENHAM SPRINGS; WILLIAMSON EYE
CENTER (APMC); TIMOTHY JOHN KINCHEN; SHANNON FARRIS
KINCHEN,

             Plaintiffs - Appellees

v.

STATE OF LOUISIANA, through the Department of Transportation and
Development,

             Defendant - Appellee

v.

GILCHRIST CONSTRUCTION COMPANY, INCORPORATED; BOH
BROTHERS CONSTRUCTION COMPANY, L.L.C.; JAMES
CONSTRUCTION GROUP, L.L.C.; MODJESKI & MASTERS,
INCORPORATED; GULF ENGINEERS AND CONSULTANTS,
INCORPORATED; BARRIERE CONSTRUCTION COMPANY, L.L.C.;
G.E.C., INCORPORATED; GOTECH, INCORPORATED; GEO ENGINEERS,
INCORPORATED; SJB GROUP, L.L.C.; EUSTIS ENGINEERING, L.L.C.,
formerly known as Eustis Engineering Services, L.L.C.,

             Defendants - Appellants




                Appeal from the United States District Court
                    for the Middle District of Louisiana
                           USDC No. 3:17-CV-55
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                                      No. 17-30768
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       This class action lawsuit alleges that a concrete barrier installed as part
of a highway widening project exacerbated flooding caused by an August 2016
rainstorm. Appellant James Construction Group, LLC removed from state
court to the United States District Court for the Middle District of Louisiana.
The district court subsequently granted appellees’ remand motion, and
appellants appeal that order.
       Appellants assert three bases for removal: (1) Class Action Fairness Act
(CAFA) jurisdiction; (2) federal officer jurisdiction; and (3) federal question
jurisdiction. We affirm the district court’s remand as to CAFA and federal
officer jurisdiction, and dismiss the appeal for lack of jurisdiction as to the
district court’s federal question determination.
                                             I.
       In August 2016, southern Louisiana experienced several consecutive
days of heavy rain. The rain led to widespread flooding, which damaged homes
and businesses.
       On January 5, 2017, appellees filed a Class Action Petition for Damages
and Injunctive Relief in the 19th Judicial District Court for the Parish of East
Baton Rouge. Appellees named twenty-one defendants: the State of Louisiana
through the Louisiana Department of Transportation and Development (LA
DOTD) and twenty private firms that participated in the design and
construction of the 2009 “Geaux Wider” project. Geaux Wider widened sections
of Interstate 12 in East Baton Rouge and Livingston Parishes. Appellees allege



       * 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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                                     No. 17-30768
that a concrete median barrier installed as part of the project, acted as an
“artificial floodwall” which “unnaturally impounded rainwater.” As a result,
“additional areas were flooded that ordinarily would not have flooded.”
Appellees seek to represent three “sub classes” comprising governmental
agencies, commercial businesses, and individuals. Each proposed class is
composed of people or entities that “would not have sustained damages as a
result of inundation/flooding . . . but for the alteration of natural surface water
flow resultant from the ‘Geaux Wider’ project.”
      After appellant James Construction Group, LLC removed to the District
Court for the Middle District of Louisiana, appellees moved to remand to state
court. The district court granted the motion to remand, and this appeal
followed.
                                            II.
      We begin by reviewing our jurisdiction to hear this appeal. Appellants
assert three bases for removal: (1) Class Action Fairness Act jurisdiction, under
28 U.S.C. § 1332(d)(2); (2) federal officer jurisdiction, under 28 U.S.C.
§ 1442(a)(1); and (3) federal question jurisdiction, under 28 U.S.C. § 1331. 1 We
have jurisdiction to review the part of the remand order concerning CAFA and
federal officer jurisdiction, but not the part about federal question jurisdiction.

                                            A.
      “Orders remanding a case to state court are generally not reviewable.”
Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460 (5th Cir. 2016) (citing 28
U.S.C. § 1447(d)). But this rule is not absolute. “There is an exception [to
§ 1447(d)] . . . for cases invoking CAFA.” Dart Cherokee Basin Operating Co.,




      1       Before the district court, appellants also asserted jurisdiction based on 28
U.S.C. § 1345, which applies to suits commenced by the United States. Appellants since have
waived removal based on this statute.
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                                       No. 17-30768
LLC v. Owens, 135 S. Ct. 547, 552 (2014); 28 U.S.C § 1453(c)(1)
(“[N]otwithstanding section 1447(d), a court of appeals may accept an appeal
from an order of a district court granting or denying a motion to remand a class
action to the State court from which it was removed . . . .”). Another exception
applies to remand orders involving the federal officer removal statute, 28
U.S.C. § 1442. See § 1447(d) (“[A]n order remanding a case to the State court
from which it was removed pursuant to section 1442 . . . of this title shall be
reviewable by appeal or otherwise.”); see also Savoie, 817 F.3d at 460.
Accordingly, we have jurisdiction to review the district court’s determination
that it lacked CAFA and federal officer jurisdiction. 2
                                             B.
       Section 1447(d)’s general bar on review of remand orders applies to
actions removed under 28 U.S.C. § 1441(a), the removal statute for federal
question jurisdiction. Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128
(1995). Nonetheless, appellants assert that the CAFA exception to § 1447(d),
which permits appeal from “an order” remanding a class action, gives us
jurisdiction to review every issue decided in the remand order, including
federal question jurisdiction. § 1453(c)(1) (emphasis added). This reading of
§ 1453(c)(1) is the rule in some other circuits, see, e.g., Brill v. Countrywide
Home Loans, Inc., 427 F.3d 446, 451-52 (7th Cir. 2005); but see Jacks v.
Meridian Res. Co., LLC, 701 F.3d 1224, 1228 (8th Cir. 2012), but not clearly so



       2       Appellants do not argue that the § 1447(d) exception for federal officer
jurisdiction allows us to review the entire remand order. This court has rejected similar
arguments in the past. See Robertson v. Ball, 534 F.2d 63, 65-66 (5th Cir. 1976) (where
district court remanded after defendants removed alleging both diversity and 28 U.S.C.
§ 1443 jurisdiction, appellate court had jurisdiction only to review the § 1443 portion of the
remand order); see also Decatur Hosp. Auth. v. Aetna Health, Inc., 854 F.3d 292, 296 (5th Cir.
2017) (“Robertson implies . . . that we cannot review a remand order (or a portion thereof)
expressly based on a Section 1447(c) ground when the basis for removal is a statute that, like
Section 1441, Section 1447(d) does not specifically exempt from Section 1447(c)’s bar.”).
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                                       No. 17-30768
in ours. The only precedential opinion from this court does not explicitly state
that we are prohibited from considering an entire order when a defendant
removes on both CAFA and federal question grounds, though that may be a
plausible reading of it. See Patterson v. Dean Morris, L.L.P., 448 F.3d 736, 739
(5th Cir. 2006); see also Perritt v. Westlake Vinyls Co., L.P., 562 F. App’x 228,
231 (5th Cir. 2014) (“[W]e do not have jurisdiction to review the district court’s
decision to remand for lack of diversity jurisdiction, but we may review its
decision to remand for lack of CAFA jurisdiction.”) (internal modification
omitted) (quoting Berniard v. Dow Chem. Co., 481 F. App’x 859, 860 (5th Cir.
2010)). 3 Facing our CAFA deadline, we continue to apply Patterson, Perritt,
and Berniard’s suggestion that our jurisdiction to review a CAFA remand order
stops at the edge of the CAFA portion of the order. 4

                                             III.
       The district court held that this case falls under CAFA’s local controversy
exception, a determination we review de novo. Williams v. Homeland Ins. Co.
of N.Y., 657 F.3d 287, 290 (5th Cir. 2011). The parties moving for remand bear
the burden of proof that they fall within an exception to CAFA jurisdiction. Id.
“If the applicability of an exception [to CAFA jurisdiction] is not shown with
reasonable certainty, federal jurisdiction should be retained.” Arbuckle
Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 338
(5th Cir. 2016). “The language, structure, and history of CAFA all demonstrate
that Congress contemplated broad federal court jurisdiction with only narrow
exceptions.” Id. at 337 (internal modification omitted).


       3        The Seventh Circuit has reiterated its position in Lu Junhong v. Boeing
Company. 792 F.3d 805, 810 (7th Cir. 2015). That case, however, seems to be in tension with
our decision in Robertson. 534 F.2d at 65-66; cf. 15A Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 3914.11 (2d ed. updated Apr. 2017).
       4        If the entire order were properly before us for review, we would find no error
in the district court’s analysis and conclusion that it lacked federal question jurisdiction.
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                                     No. 17-30768
       “CAFA provides the federal district courts with ‘original jurisdiction’ to
hear a ‘class action’ if the class has more than 100 members, the parties are
minimally diverse, and the ‘matter in controversy exceeds the sum or value of
$5,000,000.’” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013)
(quoting 28 U.S.C. § 1332(d)(2), (d)(5)(B)). It is undisputed that these
requirements are met. There are, however, exceptions to CAFA jurisdiction.
Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 804, 810-11 (5th
Cir. 2007). One of these, the local controversy exception, 5 provides that the
district court “shall decline to exercise jurisdiction”:
       (i) over a class action in which—

             (I) greater than two-thirds of the members of all proposed plaintiff
             classes in the aggregate are citizens of the State in which the
             action was originally filed;

             (II) at least 1 defendant is a defendant—

                    (aa) from whom significant relief is sought by members of
                    the plaintiff class;

                     (bb) whose alleged conduct forms a significant basis for the
                     claims asserted by the proposed plaintiff class; and

                     (cc) who is a citizen of the State in which the action was
                     originally filed; and

              (III) principal injuries resulting from the alleged conduct or any
              related conduct of each defendant were incurred in the State in
              which the action was originally filed; and

       (ii) during the 3–year period preceding the filing of that class action, no
       other class action has been filed asserting the same or similar factual



      5        Before the district court, appellees also pressed a second exception to CAFA
jurisdiction, the home-state exception. The district court rejected this argument and
appellees have since abandoned it.
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                                       No. 17-30768
       allegations against any of the defendants on behalf of the same or other
       persons.

§ 1332(d)(4)(A). Appellants concede that every requirement except the final one
is met here. They point to Levi Robertson, et al. v. The State of Louisiana and
the Department of Transportation and Development, No. 16-2272 (21st Judicial
District Court, Parish of Tangipahoa, filed Aug 22, 2016), as a similar class
action filed in the three years preceding this suit. Appellees do not dispute that
Robertson is a class action filed within the relevant time period, or that LA
DOTD is a defendant both here and in Robertson. Accordingly, to determine
whether the district court erred in remanding this case under the local
controversy exception, we need only decide whether the plaintiff in Robertson
asserts “the same or similar factual allegations” as appellees assert in this
case. See Vodenichar v. Halcon Energy Props., Inc., 733 F.3d 497, 508 (3d Cir.
2013) (“CAFA does not define what constitutes an ‘other class action’ other
than to limit it to filed cases asserting similar factual allegations against a
defendant.”). If the alleged facts are the same or similar, CAFA jurisdiction
obtains; if not, then not.
       The Robertson petition is short on facts. 6 It asserts that “some years prior
to August 12, 2016, [LA] DOTD constructed a crossing of the Highway I-12
crossing of the [sic] Tangipahoa River flood plain near the town of Robert, La.”
It then references another case, Jean Boudreaux v. The State of Louisiana,
DOTD, No. 71408, (21st Judicial District Court, Parish of Tangipahoa, filed
Apr. 6, 1984), and states that “[t]he allegations in this lawsuit are the exact
same claims of wrongful acts as set out” in Boudreaux. The petition in
Robertson alleges that in Boudreaux “it was proved that the construction of


       6       In June 2017, the Louisiana First Circuit Court of Appeal held that Robertson’s
claims were prescribed. Robertson v. Louisiana and The Dep’t of Trans. and Dev., 17-165 (La.
App. 1 Cir. 6/9/17).
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                                  No. 17-30768
Louisiana I-12 across the flood plain of the Tangipahoa River . . . caused the
flood waters of April, 1983 to back up above I-12 and flooded the class members
North of I-12 . . . .”
       As noted, appellees allege that they were harmed in the August 2016
floods when portions of I-12 trapped water north of the highway. But the two
suits focus on different construction projects in different places. Robertson, by
incorporating Boudreaux, alleges that the highway as it existed in 1983 caused
increased flooding in Tangipahoa Parish. Appellees, by contrast, allege that
the August 2016 “[f]lood waters reached levels that would have normally
flowed across I-12 but for the [2009] ‘Geaux Wider’ project” and, as a result,
“additional areas were flooded[.]” (emphasis added). Appellees’ proposed
classes include only entities and individuals “within East Baton Rouge and
Livingston Parishes” that were damaged “as a result of inundation/flooding in
this area . . . .”
       In short, Robertson alleges that a different construction project, initiated
more than twenty-five years before Geaux Wider, worsened flooding in a
different parish. Accordingly, we hold that Robertson is not the sort of “similar”
class action that would support federal jurisdiction over this otherwise local
controversy. The district court therefore correctly declined to exercise CAFA
jurisdiction.
                                        IV.
       Finally, appellants argue that James Construction was entitled to a
federal forum because it was acting under a federal officer when it designed
and built Geaux Wider. “[F]ederal officer removal under 28 U.S.C. § 1442 is
unlike other removal doctrines: it is not narrow or limited.” State v. Kleinert,
855 F.3d 305, 311 (5th Cir. 2017) (internal quotation marks omitted).
Accordingly, we review the district court’s order on this point “without a thumb
on the remand side of the scale.” Id. (quoting Savoie, 817 F.3d at 462).
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                                  No. 17-30768
Nonetheless, it remains “the defendant’s burden to establish the existence of
federal jurisdiction over the controversy.” Winters v. Diamond Shamrock
Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).
      Under § 1442, an action “against or directed to . . . any officer (or any
person acting under that officer) of the United States or of any agency thereof,
in an official or individual capacity, for or relating to any act under color of
such office” may be removed to federal court. 28 U.S.C. § 1442(a)(1). To remove,
a defendant must show: “(1) that it is a person within the meaning of the
statute, (2) that it has a colorable federal defense, (3) that it acted pursuant to
a federal officer’s directions, and (4) that a causal nexus exists between its
actions under color of federal office and the plaintiff’s claims.” Zeringue v.
Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (internal quotation marks and
modifications omitted). The district court held that James Construction did not
show that it was “acting under” a federal officer, and therefore could not meet
the third prong of the test. We agree.
      Appellants assert that James Construction was acting under a federal
officer because its work—including the project’s hydraulic design—was subject
to inspection and approval by federal regulators. “The words ‘acting under’ are
broad, and . . . the [federal officer removal] statute must be ‘liberally
construed.’” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007)
(quoting Colorado v. Symes, 286 U.S. 510, 517 (1932)). “But broad language is
not limitless.” Id. In Watson, plaintiffs sued a cigarette manufacturer alleging
it had manipulated testing results to show lower nicotine and “tar” content in
cigarettes marketed as “light.” Id. at 146. The Eighth Circuit held that because
the Federal Trade Commission mandated that Philip Morris use the testing
regime plaintiffs challenged—and enforced that mandate with ongoing
monitoring, laboratory inspections, independent verification, and enforcement
actions against manufacturers—Philip Morris was “acting under” a federal
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                                 No. 17-30768
officer and could remove pursuant to § 1442. Watson v. Philip Morris Cos., Inc.,
420 F.3d 852, 858 (8th Cir. 2005).
      The Supreme Court reversed, and held that “the fact that a federal
regulatory agency directs, supervises, and monitors a company’s activities in
considerable detail” is insufficient to meet the “acting under” requirement.
Watson, 551 U.S. at 145. The Court explained its holding in detail:
      [A] highly regulated firm cannot find a statutory basis for removal
      in the fact of federal regulation alone. A private firm’s compliance
      (or noncompliance) with federal laws, rules, and regulations does
      not by itself fall within the scope of the statutory phrase “acting
      under” a federal “official.” And that is so even if the regulation is
      highly detailed and even if the private firm’s activities are highly
      supervised and monitored. A contrary determination would
      expand the scope of the statute considerably, potentially bringing
      within its scope state-court actions filed against private firms in
      many highly regulated industries. Neither language, nor history,
      nor purpose lead us to believe that Congress intended any such
      expansion.

Id. at 153 (citation omitted). The Court, however, distinguished cases in which
a “private contractor . . . is helping the Government to produce an item that it
needs.” Id. The opinion noted that although “close supervision” may be
“sufficient to turn a private contractor into a private firm ‘acting under’ a
Government ‘agency’ or ‘officer,’” the same is not true when a company is
merely “subjected to intense regulation.” Id.
      James Construction asserts the “government contractor defense” as its
required “colorable” federal defense. “That defense provides immunity to
contractors for conduct that complies with the specifications of a federal
contract.” Crutchfield v. Sewerage & Water Bd. of New Orleans, 829 F.3d 370,
375 (5th Cir. 2016) (citing Boyle v. United Techs. Corp., 487 U.S. 500 (1988)).
But the district court correctly determined that appellants failed to show that
James Construction’s work on I-12 was undertaken pursuant to a federal

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                                 No. 17-30768
contract. Although appellants describe Geaux Wider as “federally funded,”
they do not assert that James Construction ever entered into a contract with
the federal government; rather, James Construction’s work on the Geaux
Wider project was undertaken pursuant to a “Design-Build Agreement” it
entered into with LA DOTD. The contract states that “LA DOTD did advertise
for, receive, and accept a Proposal from [James Construction] for work on an
LA DOTD DB [Design-Build] project.” The LA DOTD contract obligates James
Construction “to complete the Interstate-12 (I-12) Widening DB Project
(Project) in a thorough and workmanlike manner to the satisfaction of the
appropriate officials of the LA DOTD.” Nothing about this contract suggests
that James Construction was operating as a federal government contractor or
subcontractor. Rather, the arrangement appears to be consistent with the
federal government’s usual approach to highway construction: it approves the
project and provides most of the funding, but states build and own the highway.
See, e.g., Lathan v. Brinegar, 506 F.2d 677, 682 (9th Cir. 1974) (“Under the
Federal-Aid Highway Act, primary responsibility for highway planning, design
and construction rests on state highway departments, aided by federal
assistance.” (citation and footnote omitted)).
      As evidence of the federal government’s participation in the Geaux Wider
project, appellants point to the Louisiana Stewardship Agreement entered into
between LA DOTD and the Federal Highway Administration (FHWA) in 2007.
Appellants assert that the contract shows that FHWA retained “oversight
responsibility” for the Geaux Wider project. Perhaps, but nothing about that
agreement suggests that James Construction was operating as a federal
government contractor or subcontractor, or was in any similar relationship
with a federal supervisor. The six-page agreement “is intended to result in the
effective and efficient management of public funds and to ensure that the
Federal aid highway program is delivered consistent with laws, regulations,
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                                  No. 17-30768
policies and good business practices.” The agreement references 23 U.S.C.
§ 106(g), which requires only that the Transportation Secretary “establish an
oversight program to monitor the effective and efficient use of funds authorized
to carry out this title . . . [which] shall be responsive to all areas relating to
financial integrity and project delivery.” This monitoring arrangement is not
the procurement relationship that in previous cases has allowed a private firm
to enjoy the benefit of federal officer removal. Cf. Zeringue, 846 F.3d at 788
(U.S. Navy contract); Savoie, 817 F.3d at 462 (U.S. Navy and Coast Guard
contracts); Miller v. Diamond Shamrock Co., 275 F.3d 414, 416 (5th Cir. 2001)
(U.S. military contract); Williams v. Todd Shipyards Corp., 154 F.3d 416, 1998
WL 526612, at *1 (5th Cir. 1998) (unpublished) (U.S. Navy, Army, and
Maritime Commission contracts).
      Despite asserting the government contractor defense, appellants have
not provided evidence suggesting that James Construction was operating as a
federal contractor or had a similar relationship with a federal supervisor.
Absent this relationship between the federal government and a private firm,
the Supreme Court’s decision in Watson instructs that even onerous and
specifically enforced regulations do not suffice to show the firm was “acting
under” a federal officer. See also Sawyer v. Foster Wheeler LLC, 860 F.3d 249,
255 (4th Cir. 2017); Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir.
2008). Accordingly, we affirm the district court’s remand order as to federal
officer jurisdiction because appellants have failed to meet their burden to show
that James Construction was “acting under” a federal officer when it designed
and built the Geaux Wider project.
                                       V.
      For the foregoing reasons, we AFFIRM the district court’s remand as to
CAFA and federal officer jurisdiction, and DISMISS for lack of jurisdiction the
appeal as to the district court’s federal question determination.
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