     Case: 13-30094   Document: 00512349949     Page: 1   Date Filed: 08/21/2013




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

                                                                  FILED
                                                                August 21, 2013

                                 No. 13-30094                   Lyle W. Cayce
                                                                     Clerk

DIAMOND YOUNG; ELIZABETH BALDWELL; JUDY BALDWELL; EARL
KEITH BARDWELL; EDWARD BIGNER, SR.; ET AL,

                                           Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA,

                                           Defendant - Appellee



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


Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
WIENER, Circuit Judge:
      Plaintiffs-Appellants (“plaintiffs”) are landowners who seek damages from
the United States (“the government”) under the Federal Tort Claims Act
(“FTCA”) for its role in the design, construction, and maintenance of a portion
of a highway that, plaintiffs allege, prevents sufficient drainage during periods
of heavy rainfall. The district court dismissed plaintiffs’ action for lack of
jurisdiction after determining that they had filed their claims after the FTCA’s
limitations period had expired. On appeal, plaintiffs contend that the court
erred when it declined to apply Louisiana’s continuing-tort doctrine to delay
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commencement of the running of the FTCA’s two-year limitations period. We affirm.


                         I. FACTS AND PROCEEDINGS
       Plaintiffs are homeowners and business owners in the watershed of the
Tangipahoa River, north of Interstate 12 in Tangipahoa Parish, Louisiana. They
allege that the United States Geographical Survey (“USGS”), a bureau of the
United States Department of the Interior (“DOI”), failed to exercise reasonable
care in conducting a hydrology study and a bridge hydrolics study in the early
1960s for use by the Louisiana Department of Transportation (“LDOT”) in
constructing Interstate 12. The USGS technicians who conducted the studies
allegedly underestimated the potential for significant flooding and ignored other
pertinent details. Interstate 12 was built in accordance with the USGS’s design,
and the design deficiencies allegedly resulted in a river crossing that fails to
allow a sufficient flow of water during periods of extremely heavy rainfall. In
such cases, the rain water backs up, creating the potential for flooding of nearby
properties.
       The last incident of significant flooding occurred in April 1983, when
backwater inundated the properties of some upstream landowners, including the
plaintiffs in this action.1 Plaintiffs were among the members of a class that
prevailed in a suit against the State of Louisiana following that 1983 flood.
Although the state court awarded substantial damages, Louisiana has never
paid that award.
       Unable to collect from the State, plaintiffs turned their attention to the
federal treasury, filing administrative claims in February 2008 with the DOI
under the FTCA for damages caused by USGS’s negligence in preparing the two


       1
         According to plaintiffs’ expert, rain events of this magnitude are expected in the
Tangipahoa River basin about once every twenty years, but thirty years have now passed
without a recurrence.

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reports at issue which contributed to the faulty design. The DOI denied those
claims—in part, because they had been filed outside the two-year FTCA
limitations period.
      Plaintiffs then sued the government in the Eastern District of Louisiana.
The government responded with a motion to dismiss for lack of jurisdiction,
asserting that plaintiffs’ failure to submit their administrative claims within the
FTCA limitations period left the district court without subject matter
jurisdiction. Plaintiffs opposed that motion, contending that (1) they only
learned of the USGS’s potential liability years after the flood and no more than
two years before presenting their claims to the DOI, and (2) irrespective of the
discovery date, the government’s ongoing maintenance of the improperly
designed highway is a continuing tort that keeps the FTCA limitations period
from starting to run for as long as the damage continues to occur.
      The district court recognized that the Fifth Circuit has not yet decided
whether a continuing tort under state law may postpone commencement of the
limitations period on a corresponding FTCA claim. The court declined to
speculate, however, and held instead that the facts alleged did not constitute a
continuing tort under Louisiana law; thus, the FTCA limitations period began
to run when plaintiffs learned of the government’s involvement in the design of
the highway. This discovery, ruled the court, preceded plaintiffs’ filing of their
administrative claims by more than two years, precluding the court from
adjudicating their subsequently filed federal action.       The court therefore
dismissed plaintiffs’ action and entered judgment for the government.
      On appeal, plaintiffs do not challenge the court’s finding of the date of
their discovery. They do, however, reassert their contention that their complaint
alleged a continuing tort which delayed commencement of the running of the
FTCA’s limitations period. As such, plaintiffs contend, their FTCA claims are
not time-barred.

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                              II. STANDARD OF REVIEW
       “When addressing a dismissal for lack of subject matter jurisdiction, we
review application of law de novo and disputed factual findings for clear error.”2
The party asserting jurisdiction—here, the plaintiffs—must prove by a
preponderance of the evidence that jurisdiction exists.3


                                       III. ANALYSIS
A. The FTCA Limitations Period
       “It is axiomatic that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for jurisdiction.”4 Federal
courts have jurisdiction to hear suits against the government only with “a clear
statement from the United States waiving sovereign immunity, together with a
claim falling within the terms of the waiver.”5 The FTCA provides that waiver,
but only “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.”6 As the tortious acts alleged in this case occurred in
Louisiana, plaintiffs may sue the government if Louisiana law would impose tort
liability on a private person for the wrongs alleged.
       Before suing under the FTCA, however, plaintiffs first had to exhaust their
remedies with the DOI within two years of the date on which their FTCA claims


       2
        Alexander v. United States (In re Fema Trailer Formaldehyde Prods. Liab. Litig.), 646
F.3d 185, 189 (5th Cir. 2011).
       3
           Id.; Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009).
       4
           United States v. Mitchell, 463 U.S. 206, 212 (1983).
       5
         United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citations
omitted); see also Lane v. Pena, 518 U.S. 187, 192 (1996) (noting that the waiver may not be
implied, but “must be unequivocally expressed in statutory text”).
       6
           28 U.S.C. § 1346(b)(1).

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accrued.7 As “limitations periods in statutes waiving sovereign immunity are
jurisdictional,”8 plaintiffs’ failure to file their claims timely before the DOI would
preclude a federal court from thereafter hearing those claims. The parties agree
that we define accrual in this case according to federal law, asking “when the
plaintiff[s] discover[ed], or, in the exercise of reasonable diligence should have
discovered, the fact of the injury and its cause.”9 Although several federal courts
have addressed whether state law may indefinitely postpone the commencement
of the running of prescription when the wrongful acts and damages are
ongoing,10 that question remains open in this circuit.11 We do not reach it today,
however, as we conclude that the tortious acts that plaintiffs allege do not
constitute a continuing tort under Louisiana law.


B. Louisiana’s Continuing-Tort Doctrine
       For the purpose of determining when prescription starts to run, Louisiana
distinguishes between injuries resulting from continuous operating causes and




       7
            See 28 U.S.C. §§ 2401(b), 2675.
       8
       In re Fema Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d at 190 (citing
Ramming v. United States, 281 F.3d 158, 165 (5th Cir. 2001)).
       9
            Bush v. United States, 823 F.2d 909, 911 (5th Cir. 1987).
       10
          See, e.g., Hoery v. United States, 324 F.3d 1220, 1223-24 (10th Cir. 2003); Arcade
Water Dist. v. United States, 940 F.2d 1265, 1269 (9th Cir. 1991); Gross v. United States, 676
F.2d 295, 300 (8th Cir. 1982); Kennedy v. United States, 643 F. Supp. 1072, 1079 (E.D.N.Y.
1986).
       11
          See In re Fema Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d at 189 (evading
the question whether a state’s continuing-tort doctrine may delay accrual of an FTCA claim
and noting only that the plaintiff “ha[d] not cited any Fifth Circuit caselaw indicating that
accrual should be delayed when the plaintiff knows about the injury and could have
discovered, with a reasonable inquiry, the . . . Government’s[] potential liability”).

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those that result from discontinuous operating causes. In Hogg v. Chevron USA,
Inc.,12 the Louisiana Supreme Court stressed this point:
       When the operating cause of the injury is continuous, giving rise to
       successive damages, prescription begins to run from the day the
       damage was completed and the owner acquired, or should have
       acquired, knowledge of the damage. When the operating cause of
       the injury is discontinuous, there is a multiplicity of causes of action
       and of corresponding prescriptive periods.13

Thus, whether the government’s alleged negligence would be a continuing tort
is, in part, “a conduct-based [inquiry, with the court] asking whether the
tortfeasor perpetuates the injury through overt, persistent, and ongoing acts.”14
In Hogg, the court was building on its earlier statement in Crump v. Sabine
River Authority15 that “a continuing tort is occasioned by [continuing] unlawful
acts, not the continuation of the ill effects of an original, wrongful act.”16 In any
case, it is clear that both the injury and the wrongful conduct that caused it
must be continuous.17



       12
            45 So. 3d 991 (La. 2010).
       13
         Id. at 1003 (citations omitted) (quoting Official Revision Comments (c) to LA. CIV.
CODE art. 3493 (1983)).
       14
            Id. at 1003.
       15
            737 So. 2d 720 (La. 1999).
       16
            Id. at 728.
       17
          See Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303,
323 (5th Cir. 2002) (“For a continuing tort to exist [under Louisiana law] . . . there must
generally be continuing wrongful conduct, coupled with continuing damage.”); Roberts v.
Murphy Oil, 577 So.2d 308, 311 (La. App. 4th Cir. 1991) (“[T]he doctrine of continuing tort
applies only when both the alleged wrongful act and the damages caused by it are
continuous.”) (citing S. Cent. Bell Tel. Co. v. Texaco, Inc., 418 So. 2d 531 (La. 1982)); FRANK
L. MARAIST AND THOMAS C. GALLIGAN, 1-10 LOUISIANA TORT LAW § 10.04 (2012) (“[I]f both the
tortious conduct and the damages continue, the tort may be deemed a ‘continuing’ one and
prescription may not begin to run until the wrongful conduct ceases.”) (emphasis added).

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       We are guided primarily by those two Louisiana Supreme Court opinions,
which delineate the contours of Louisiana’s continuing-tort doctrine. In Hogg,
the plaintiffs’ land was contaminated by the migration of gasoline from formerly
leaking underground storage tanks located on neighboring property. At the time
of the suit, the leaked gasoline remained on the plaintiffs’ property, but the
operating cause of the contamination had abated ten years earlier when the
leaking tanks were removed.18 The Hogg plaintiffs contended that the presence
of the gasoline on their property constituted a continuing trespass, so that
prescription would not begin to run until the gasoline was removed.19 The
Louisiana Supreme Court disagreed, holding that the operating cause of the
plaintiffs’ injuries was the leaking underground storage tanks, and that
prescription began to run when the tanks were removed and the leaking
stopped.20 The court also rejected the plaintiffs’ contention that the failure to
contain or remediate the leakage constituted a continuing wrong, suspending the
commencement of the running of prescription.                    Citing Crump, the court
explained that “the breach of a duty to right an initial wrong simply cannot be
a continuing wrong that suspends the running of prescription, as that is the
purpose of every lawsuit and the obligation of every tortfeasor.”21
       Crump, too, is illustrative. There, the plaintiff contended that a canal
built on neighboring property caused an ox-bow portion of a bayou on her land




       18
            45 So. 3d at 995.
       19
            Id. at 1002.
       20
           Id. at 1004-06; see also Marin v. Exxon Mobil Corp., 48 So. 3d 234, 253-55 (La. 2010)
(oilfield waste was deposited into unlined pits and migrated onto plaintiffs’ property over time;
court found no continuing tort because the tortious conduct ceased when the pits were closed
more than a decade before plaintiffs filed suit).
       21
            Hogg, 45 So. 3d at 1007 (citing Crump, 737 So. 2d at 729).

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to dry up, depriving her of access through the bayou to a nearby lake.22 The
Louisiana Supreme Court held that the continued presence of the canal was not
a continuing tort: “[T]he actual digging of the canal was the operating cause of
the injury[, and t]he continued presence of the canal and the consequent
diversion of water from the ox-bow [were] simply the continuing ill effects arising
from a single tortious act.”23 Refusing to suspend the running of prescription,
the court concluded that plaintiff’s negligence action had prescribed before she
filed suit.24
       Taking direction from Hogg and Crump, we conclude that the operating
cause of the damage alleged in this case was the USGS’s furnishing of the two
allegedly negligent reports which resulted in a highway design that did not allow
sufficient flow of water during periods of heavy rainfall. The USGS’s conduct
was not perpetuated through overt, persistent, and ongoing acts: Its only
involvement with the Tangipahoa River crossing (at least of which plaintiffs
have made us aware) ended forty years before plaintiffs filed suit. And, to the
extent that federal maintenance of the I-12 highway could be considered a
“continuing” series of acts, such maintenance is not “wrongful,”25 and does not
continue to harm plaintiffs. Unlike the wrongful acts in Cooper v. Louisiana
Department of Public Works26—the only Louisiana case that plaintiffs cite for


       22
            Crump, 737 So. 2d at 723.
       23
            Id. at 727-728 (emphasis added).
       24
            Id. at 731.
       25
          See, e.g., id. at 728 (assuming, arguendo, that the defendant owed the plaintiff a duty
not to dig the canal, and concluding that this duty was breached only during the time that the
digging occurred).
       26
         870 So. 2d 315 (La. App. 3rd Cir. 2004). In Cooper, plaintiffs sued the state after its
construction of locks and dams interfered with their servitudes of drainage and caused
permanent flooding to their lands. Id. at 319-20. Analogizing to other cases in which “courts
held that debris and other objects placed on another’s property constituted a continuing

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support—the harm occasioned by the wrongful acts here ended when the
flooding subsided, decades before plaintiffs sued under the FTCA. Case law from
both Louisiana27 and federal28 courts supports the district court’s conclusion that
plaintiffs have not alleged a continuing tort under Louisiana law. As we agree,
we hold that plaintiffs’ claims accrued, and the FTCA’s two-year limitations
period expired, long before plaintiffs brought their claims before the DOI. The
district court correctly found itself without jurisdiction and correctly dismissed
accordingly.


                                   IV. CONCLUSION
       As plaintiffs have not been aggrieved by a Louisiana continuing tort, they
have failed to bear their burden of proving subject matter jurisdiction. We
therefore affirm the district court and leave for another day and another case the
question whether, by continuing the accrual of a claim brought under the FTCA,
a continuing tort may delay the commencement of that statute’s limitations
period.




trespass”—cases in which “prescription did not run until the trespass was abated”—the Cooper
court held that prescription would not run until the flooding had subsided. Here, and unlike
in Cooper, there has been no permanent flooding or any alleged drainage-related damage in
the thirty years since the 1983 flood. The support that Cooper finds in Louisiana trespass
cases does nothing to help plaintiffs here.
       27
          See Pracht v. City of Shreveport, 830 So. 2d 546, 550-51 (La. App. 2d Cir. 2002)
(concluding that separate instances of flooding caused by the negligent maintenance of a
drainage canal did not constitute a continuing tort); Roberts, 577 So. 2d at 311 (“[R]epeated
instances of flooding caused by the negligent alteration of drainage are separate and distinct
events which do not serve to interrupt prescription.”).
       28
           See Delaney v. Union Pac. R.R. Co., 2011 U.S. Dist. LEXIS 22076, *9-10 (E.D. La.
Mar. 4, 2011) (finding Louisiana’s continuing-tort doctrine inapplicable, as railroad’s negligent
design and maintenance of a drainage ditch and culverts were not “overt, persistent and
ongoing acts[,]” and the resulting instances of flooding were “merely the ill effects of the
original, allegedly wrongful act”).

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