   Case: 10-30921      Document: 00511733847        Page: 1    Date Filed: 01/23/2012




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

                                                                         FILED
                                                                      January 23, 2012

                                     No. 10-30921                       Lyle W. Cayce
                                                                             Clerk



IN RE: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY
LITIGATION (MISSISSIPPI PLAINTIFFS),

                                  Consolidated With



                                     No. 10-30945


IN RE: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY
LITIGATION (ALABAMA PLAINTIFFS),




   Appeals from the United States District Court for the Eastern District of
                  Louisiana MDL No. 07-1873, Section “N”


Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges.
CARL E. STEWART, Circuit Judge:
      Plaintiffs-Appellants (“Appellants”)1 brought this Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680, action against the United States (“the
Government”) for injuries allegedly related to their exposure to elevated levels
of formaldehyde contained in the component materials of the Emergency


      1
        Except where noted otherwise herein, “Appellants” refers to Mississippi Plaintiffs
(Case No. 10-30921) and Alabama Plaintiffs (Case No. 10-30945) collectively.
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                     No. 10-30921 Consolidated With 10-30945

Housing Units (“EHUs”) provided to them by the Federal Emergency
Management Agency (“FEMA”) after Hurricanes Katrina and Rita. The district
court dismissed Appellants’ claims for lack of subject matter jurisdiction. We
AFFIRM.


                                             I.
       In 2005, Hurricanes Katrina and Rita destroyed the homes of thousands
of residents along the Gulf Coast.2 Over the months and years following the
hurricanes, displaced residents returned to find a shortage of alternative
housing. Pursuant to 42 U.S.C. § 5170, the President of the United States
declared the occurrence a major disaster. In response to the disaster, FEMA was
directed to provide assistance to the disaster victims. 42 U.S.C. § 5174(b)(1).
       Shortly thereafter, FEMA activated its Individual and Household
Assistance Program and, from September 2005 through May 1, 2009, the agency
supplied disaster victims with EHUs, at no cost, to use as temporary shelter.
The EHUs were taken from FEMA’s preexisting inventory, which had been
purchased from public retailers as well as manufacturers. The EHUs were
small, portable, and usually placed at the disaster victims’ home sites. The
trailers were installed by Government contractors who placed the units on blocks
or piers, anchored them to the ground using straps or bolts, and connected them
to public sewer and water lines. To obtain use of an EHU, the person seeking
assistance would complete and sign an application acknowledging that he was
requesting an EHU to use as shelter because he was currently unable to live in
his own residence due to the disaster. The EHU applications indicated that the




       2
         Both Hurricanes Katrina and Rita significantly affected disaster victims residing in
Mississippi, while only Hurricane Katrina significantly affected disaster victims residing in
Alabama.

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                   No. 10-30921 Consolidated With 10-30945

units were intended for temporary use and that applicants were required to
accept alternative housing options as they became available.
      In March 2006, FEMA began receiving complaints from EHU occupants
regarding formaldehyde odors inside of the units and continued receiving
complaints during the following months. Formaldehyde is a chemical substance
commonly found in many construction materials such as plywood, particle board,
home furnishing, fabrics, and other household products. According to the Center
for Disease Control - Agency for Toxic Substances and Disease Registry (CDC-
ATSDR), elevated and high levels of formaldehyde can act as an irritant and
lead to other health problems.
      In March 2006, when FEMA began receiving formaldehyde complaints, it
encouraged shelter occupants to ventilate their EHUs by opening the doors and
windows. In June 2006, FEMA prepared an informational brochure informing
EHU occupants of the dangers of formaldehyde exposure, encouraging them to
ventilate their units, and urging them to seek medical help if they developed
health problems related to formaldehyde. The brochures were distributed
between July and September 2006.
      In September 2006, FEMA began working with the Environmental
Protection Agency (“EPA”) which tested the EHUs for formaldehyde and
developed mitigation techniques.      Over the next year, FEMA received
approximately 200 formaldehyde complaints from EHU occupants. In July 2007,
FEMA distributed another informational brochure to EHU occupants, set up a
hotline and a dedicated call center to field formaldehyde complaints from
occupants, and continued to assist occupants in locating alternative housing.
FEMA subsequently entered into an agreement with the CDC to conduct
additional testing, the findings of which were compiled in a third informational
brochure and distributed to EHU occupants in early 2008. On May 1, 2009, the



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                    No. 10-30921 Consolidated With 10-30945

Government officially ended efforts to provide EHUs to disaster victims from
Hurricanes Katrina and Rita.
      Appellants are individuals who resided in the EHUs in Mississippi and
Alabama. The Mississippi and Alabama appellants each sued more than 100
entities, including the Government. In October 2007, the United States Judicial
Panel on Multidistrict Litigation (“MDL”) created MDL No. 07-1873 (In re:
FEMA Trailer Formaldehyde Products Liability Litigation)3 and assigned the
litigation to the United States District Court for the Eastern District of
Louisiana.   In March 2008, in accordance with the district court’s order,
Appellants filed a consolidated master complaint containing class allegations
and naming as defendants various private manufacturers and contractors as
well as the Government. All actions centralized in the MDL share factual
questions relating to allegations that the EHUs provided by FEMA in response
to Hurricanes Katrina and Rita contained materials which emit dangerous levels
of formaldehyde.
      Appellants allege that, for the period of time between March and June
2006, FEMA caused them harm by placing litigation concerns ahead of the
safety of EHU occupants by exposing them to trailers FEMA knew to contain
dangerous levels of formaldehyde, without warning occupants of the dangerous
nature of the units or remedying the dangerous nature of the units.
      In support of this contention, Appellants assert that, in spite of being
notified on numerous occasions of complaints by EHU residents regarding
formaldehyde emissions during March through June of 2006, FEMA persisted
in not responding to these concerns. According to Appellants, FEMA’s lack of a



      3
          MDL No. 07-1873 includes (No. 10-30921) In re: FEMA Trailer Formaldehyde
Products Liability Litigation (Mississippi) and (No. 10-30945) In re: FEMA Trailer
Formaldehyde Products Liability Litigation (Alabama). These two cases have been
consolidated in this appeal.

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response was part of a deliberate effort to avoid liability for future formaldehyde
exposure claims and litigation. Appellants further allege that FEMA ignored
and manipulated the concerns of federal scientists in an attempt to avoid
negative publicity and legal liability.
      In May 2008, the Government moved to dismiss Appellants’ FTCA claims
for lack of subject-matter jurisdiction, or in the alternative for summary
judgment, based on the FTCA’s discretionary function exception. In October
2008, the district court found that all of the Government’s conduct at issue was
discretionary, but that some of its actions may not have been grounded in social,
economic, or political policy. Therefore, it held that a genuine issue of material
fact remained as to whether, during an identifiable period of time, FEMA’s
response to the issue of formaldehyde in the EHUs was insufficient or delayed
due to self-interest or liability concerns.
      In May 2009, the Government filed a second motion to dismiss Appellants’
claims for lack of subject-matter jurisdiction, or in the alternative for summary
judgment, based on the FTCA’s discretionary function exception. In August
2009, the district court denied this motion and reaffirmed that the FTCA’s
discretionary function exception may not apply to some or all of Appellants’
claims, the determination of which would be driven by the facts of each
individual case.
      The district court then denied class certification and scheduled a series of
bellwether trials, but none of the FTCA claims brought by the bellwether
plaintiffs against the Government advanced to the trial stage. In October 2009,
Appellants filed a supplemental administrative master complaint for the
purpose of presenting to the district court an updated “procedural vehicle for the
disposition of common issues.”
      In November 2009, the Government moved under Rule 12(b)(1) to dismiss
Appellants’ FTCA claims for lack of subject-matter jurisdiction on the grounds

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of no analogous private liability under the Mississippi and Alabama emergency
statutes, Mississippi Emergency Management Law (“MEML”), Miss. Code § 33-
15-21(b) and Alabama Emergency Management Act (“AEMA”), Ala. Code § 31-9-
17. See Fed. R. Civ. P. 12(b)(1); 28 U.S.C. §§ 1346(b)(1), 2674. After concluding
that the aforementioned emergency statutes would bar suit against a “private
person under similar circumstances,” the district court granted the
Government’s motion and dismissed Appellants’ FTCA claims.
      In August 2010, the district court entered a final, appealable judgment
under Fed. R. Civ. P. 54(b) dismissing Appellants’ remaining FTCA claims. This
appeal ensued.
                                        II.
      A Rule 12(b)(1) motion to dismiss challenges the subject-matter
jurisdiction of the federal court. See Fed. R. Civ. P. 12(b)(1). A district court’s
determination of subject-matter jurisdiction is generally reviewed de novo.
Williams v. Wynne, 533 F.3d 360, 364-65 (5th Cir. 2008). Plaintiffs bear the
burden of establishing subject-matter jurisdiction. Castro v. United States, 560
F.3d 381, 386 (5th Cir. 2009), vacated on other grounds, 608 F.3d 266 (5th Cir.
2010).
      Federal courts are courts of limited jurisdiction; without jurisdiction
conferred by statute, they lack the power to adjudicate claims. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Stockman v. Fed.
Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). Under Rule 12(b)(1), a
claim is “properly dismissed for lack of subject-matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate” the claim. Home
Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)
(internal citation omitted).    The court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the merits. Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). Considering Rule 12(b)(1)

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motions first “prevents a court without jurisdiction from prematurely dismissing
a case with prejudice.” Id.
      Lack of subject-matter jurisdiction may be found in the complaint alone,
the complaint supplemented by the undisputed facts as evidenced in the record,
or the complaint supplemented by the undisputed facts plus the court’s
resolution of the disputed facts. Ramming, 281 F.3d at 161. A motion to dismiss
for lack of subject-matter jurisdiction should only be granted if it appears certain
that the plaintiff cannot prove any set of facts in support of his claims entitling
him to relief. Wagstaff v. United States Dep’t of Educ., 509 F.3d 661, 663 (5th
Cir. 2007).
      A plaintiff may only sue the United States if a federal statute explicitly
provides for a waiver of sovereign immunity. The United States must consent
to be sued, and that consent is a prerequisite to federal jurisdiction. Delta
Commercial Fisheries Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 364 F.3d 269,
273 (5th Cir. 2004).     Waivers of sovereign immunity should be narrowly
construed in favor of the United States. In re Supreme Beef Processors, Inc., 468
F.3d 248, 253 (5th Cir. 2006).
      The FTCA is recognized as providing a waiver of sovereign immunity and
provides the sole basis of recovery for tort claims against the United States. See
28 U.S.C. § 1346 and § 2671, et seq.; In re Supreme Beef Processors, 468 F.3d at
252 n.4. Section 2674 provides that the United States shall be liable in the same
manner and to the same extent as a private individual under like circumstances.
28 U.S.C. § 2674.
      Similarly, section 1346 provides that:
      [D]istrict courts . . . shall have exclusive jurisdiction of civil actions on
      claims against the United States, for money damages . . . for injury or
      loss of property, or personal injury or death caused by the negligent
      or wrongful act or omission of any employee of the Government while
      acting within the scope of his office or employment, under


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      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.

28 U.S.C. § 1346(b)(1).

      The “law of the place where the act or omission occurred” refers exclusively
to state law. Brown v. United States, 653 F.2d 196, 201 (5th Cir. 1981). Since
the FTCA requires the Government's liability to be measured in accordance with
the law of the state where the alleged act or omission occurred, Appellants’
FTCA claims are limited by the provisions set forth in Mississippi and Alabama
tort law. See 28 U.S.C. § 1346(b)(1); Richards v. United States, 369 U.S. 1, 11-14
(1962); Cleveland ex rel. Cleveland v. United States, 457 F.3d 397, 403 (5th Cir.
2006).
      Mississippi law provides:
            (a) Neither the state nor any political subdivision thereof, nor
            other agencies, nor, except in cases of willful misconduct,
            the agents, employees, or representatives of any of them
            engaged in any emergency management activities, while
            complying with or attempting to comply with this article or
            any rule or regulation promulgated pursuant to the provisions
            of this article, shall be liable for the death of or any injury to
            persons, or damage to property, as a result of such activity.
            The provisions of this section shall not affect the right of any
            person to receive benefits to which he would otherwise be
            entitled under this article, or under the workmen's
            compensation law, or under any pension law, nor the right of
            any such person to receive any benefits or compensation under
            any act of congress.
            (b) Any person owning or controlling real estate or other
            premises who voluntarily and without compensation grants a
            license or privilege, or otherwise permits the designation or
            use of the whole or any part or parts of such real estate or
            premises for the purpose of sheltering persons or providing
            assistance to persons during or in recovery from an actual,
            impending, mock or practice attack or any man-made,


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        technological or natural disaster, together with his successors
        in interest, if any, shall not be civilly liable for negligently
        causing the death of, or injury to, any person on or about such
        real estate or premises by virtue of its use for emergency
        management purposes, or loss of, or damage to, the property
        of such person.
        Miss. Code § 33-15-21 (emphasis added).

   Similarly, Alabama law provides:

        Neither the state nor any political subdivision thereof nor
        other agencies of the state or political subdivisions thereof,
        nor, except in cases of willful misconduct, gross
        negligence or bad faith, any emergency management
        worker, individual, partnership, association or corporation
        complying with or reasonably attempting to comply with this
        chapter or any order, rule or regulation promulgated pursuant
        to the provisions of this chapter or pursuant to any ordinance
        relating to blackout or other precautionary measures enacted
        by any political subdivision of the state, shall be liable for the
        death of or injury to persons, or for damage to property, as a
        result of any such activity. The provisions of this section shall
        not affect the right of any person to receive benefits to which
        he would otherwise be entitled under this chapter or under the
        Worker's Compensation Law or under any pension law, nor the
        right of any such person to receive any benefits or
        compensation under any act of Congress.

        Ala. Code § 31-9-16(b) (emphasis added).

        Any person owning or controlling real estate or other premises
        who voluntarily and without compensation grants a license or
        privilege, or otherwise permits the designation or use of the
        whole or any part or parts of such real estate or premises for
        the purpose of sheltering persons during an actual disaster or
        an actual, impending, mock or practice attack, shall, together
        with his successors in interest, if any, not be civilly liable for
        negligently causing the death of, or injury to, any person on or
        about such real estate or premises, or for the loss of, or damage
        to, the property of such person.
        Ala. Code § 31-9-17.

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      Whether a private person in “like circumstances” would be subject to
liability is a question of sovereign immunity and, thus, is ultimately a question
of federal law. See United States v. Olson, 546 U.S. 43, 44 (2005). Because the
federal government could never be exactly like a private actor, a court’s job in
applying the standard is to find the most reasonable analogy. LaBarge v. Cnty.
of Mariposa, 798 F.2d 364, 366-69 (9th Cir. 1986). Inherent differences between
the government and a private person cannot be allowed to disrupt this analysis.
Olson, 546 U.S. at 46-47. The Fifth Circuit has consistently held that the
Government is entitled to raise any and all defenses that would potentially be
available to a private citizen or entity under state law. Camacho v. Tex.
Workforce Comm'n, 445 F.3d 407, 410 (5th Cir. 2006); Starnes v. United States,
139 F.3d 540, 542 (5th Cir. 1998); Palmer v. Flaggman, 93 F.3d 196, 199 (5th
Cir. 1996). Therefore, if a private person under “like circumstances” would be
shielded from liability pursuant to a state statute, lower courts must decline to
exercise subject-matter jurisdiction.
      Appellants concede that, in accordance with the FTCA, the Government
can only be held liable to the extent that a private individual or a business entity
could be held liable under similar circumstances under the laws where the act
or omission occurred. However, Appellants contend that FEMA’s actions were
non-discretionary, not voluntary, and not without compensation, so the most
reasonable private person analogue would be a temporary housing manager, not
a good Samaritan provider of free shelter.
      Appellants argue that FEMA’s provision of the trailers was not voluntary
because the President, under the Stafford Act, is authorized to direct FEMA and
other agencies of the state to provide assistance and services to victims in need
as a result of a natural disaster. See 42 U.S.C. § 5174. Additionally, Appellants
submit that, because the district court previously dismissed their claims
involving the discretionary conduct of the Government (i.e., the selection and

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initial provision of the EHUs), the remaining claims must necessarily involve
non-discretionary conduct. Appellants contend that the Government’s response,
or lack thereof, to formaldehyde concerns, should be considered non-
discretionary conduct. Further, because FEMA receives its budget from the
Government, and the Government provides that budget by collecting taxes,
Appellants argue that the Government’s actions were not without compensation.
       Appellants also claim that the statutory phrase “during or in recovery from
an actual disaster,” which provides the time frame for immunized conduct, does
not extend to cover FEMA’s decision-making process in response to post-disaster
reports of dangerous formaldehyde levels in the EHUs.4
       Additionally, Mississippi Appellants argue that, because the FTCA is an
“act of congress” under which they are seeking compensation, and because the
emergency statutes purport not to affect the rights of those seeking
“compensation under any act of congress,” the immunity provisions were
erroneously applied to their FTCA claims, interfering with their right to
recovery.5
       Accordingly, Appellants contend that the Government’s conduct should not
be immunized under the Mississippi and Alabama emergency statutes,
effectively barring their FTCA claims. See Miss. Code § 33-15-21(b) and Ala.
Code § 31-9-17. Appellants have not cited, nor has our research located, any
controlling or persuasive case law that supports these arguments.
       Because the Mississippi and Alabama emergency statutes abrogate the
tort liability of a private person who, (1) voluntarily, (2) without compensation,
(3) allows his property or premises to be used as shelter during or in recovery
from a natural disaster, the Government’s voluntary, cost-free provision of the

       4
        The language in the Alabama emergency statute is more narrow and provides that
the time frame for the immunized conduct is “during an actual disaster.” Ala. Code § 31-9-17.
       5
           Alabama Appellants do not submit this argument in their brief.

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EHUs to disaster victims, in connection with Hurricanes Katrina and Rita, is
also immunized conduct under the statute.6 See Miss. Code § 33-15-21(b) and
Ala. Code § 31-9-17. The Government’s provision of the government-owned
EHUs, as implemented by FEMA, was voluntary because it was under no
contractual or legal obligation, under the Stafford Act or other federal
legislation, to provide the EHUs to disaster victims in response to the disasters.
See Ridgley v. FEMA, 512 F.3d 727, 736 (5th Cir. 2008). The Government did
not receive compensation from the disaster victims in exchange for letting them
use the EHUs. The collection of taxes by the Government is not comparable to
the traditional quid pro quo compensation contemplated by the statute. In
addition, the Government’s actions relating to the EHUs fell within the time
frame contemplated by the statute as “during or in recovery from” a major
disaster, since FEMA’s temporary emergency housing program did not end until
May 2009.
       We pretermit discussion of the remaining arguments set forth by
Appellants that were not raised before the district court, as it is a bedrock
principle of appellate review that claims raised for the first time on appeal will
not be considered.7 Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctr.,
Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).8


       6
        Because Appellants failed to properly preserve their argument regarding lack of
immunity for willful misconduct, we do not here need to address the scope of the tort liability
for which immunity is granted.
       7
        Appellants have not argued for plain error review. In any event, given the admittedly
res nova nature of the questions presented, we conclude that any error could not be “clear” or
“obvious.” Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1124 (5th Cir. 1997).
       8
         As noted by the district court, Appellants also failed to address the issue that the
“willful misconduct” exclusion set forth in Miss. Code § 33-15-21(a) and Ala. Code § 31-9-16(b)
is not included in Miss. Code § 33-15-21(b) or Ala. Code § 31-9-17. Additionally, Alabama
Plaintiffs failed to address the issue that the language describing the time frame for the
immunized conduct set forth in Ala. Code § 31-9-17 (“during an actual disaster”) is more
narrow than that set forth in the Miss. Code § 33-15-21(b) (“during or in recovery from [a

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       Additionally, as an alternative to handling the issue on appeal with this
court, Appellants move to certify the following questions to the Alabama and
Mississippi Supreme Courts: (1) Whether the federal government and its
political subdivisions are considered “persons” under the emergency statutes as
read in conjunction with the entire acts in which they are contained; (2) Whether
the FTCA preempts state law as to the liability vel non of the federal
government when exercising non-discretionary duties; and (3) Whether the
Mississippi and Alabama state legislatures clearly intended to immunize the
federal government under the state emergency statutes. Alabama Appellants
also move to certify the following question to the Alabama Supreme Court: (1)
Whether the actions of FEMA in failing to properly respond to complaints of
formaldehyde exposure, months after Hurricane Katrina, occurred “during an
actual disaster.”
       The decision of whether to certify a question lies within this court’s sound
discretion. Patterson v. Mobil Oil Corp., 335 F.3d 476, 487 (5th Cir. 2003) (citing
Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650,
656 (5th Cir. 2002)). The court should exercise that discretion sparingly,
certifying only in “exceptional case[s].” Lavespere v. Niagra Mach. & Tool
Works, Inc., 920 F.2d 259, 262 (5th Cir. 1990). Having considered the foregoing
and upon determining that the questions do not warrant certification, we deny
Appellants’ motions.
                                           III.
       For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing Appellants’ FTCA claims against the United States for lack of
subject-matter jurisdiction. Appellants’ motions for certification are DENIED.



natural disaster]”). Accordingly, we pretermit discussion of these issues on appeal as well.
Stewart Glass & Mirror, Inc., 200 F.3d at 316-17.

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