### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-30094

DIAMOND YOUNG; ELIZABETH BALDWELL; JUDY BALDWELL; EARL KEITH BARDWELL; EDWARD BIGNER, SR.; ET AL, Plaintiffs - Appellants
v. UNITED STATES OF AMERICA, Defendant - Appellee

A ppeal 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: P l a i n t i ffs-Appellants ( “plaintiffs”) are landowners who seek d a m a g e s f r o m the United Stat e s (“the government”) under the Federal Tort Claims Act (“FTCA”) for its role i n t he d esign , c o n s t r u ction, and maintenance of a portion of a highway that, plaintiffs allege, prevents sufficient d rainage during periods of heavy r ainfall. The dis t r i c t c ourt dismissed plaintiffs’ action for lack of jurisdiction after determining that t hey h a d f iled their claims after t h e FTCA’s limitations period had expired. On appeal, p laintiffs contend that t h e court erred when it d eclined to apply Louisiana’s continuing-t o r t d octrine to delay U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 21, 2013 Ly l e W . Cay ce Clerk Case: 13-30094 Document: 00512349949 Page: 1 Date Filed: 08/21/2013No. 13-30094

c o m m e n c e m e n t o f t h e r u n n i n g o f t h e F T C A ’ s t w o - y e a r l i m i t a t i o n s p e r i o d

. W e a f f i r m
.

I. FACTS AND PROCEEDINGS Plaintiffs are homeowners and business owners i n the watershed of the Tangipahoa River, north of I nterstate 12 in Ta n g i p a h o a Parish, Louisiana. They allege that the United States Geographical S urvey (“USGS”), a bureau of the United S tates Department of the Interior ( “DOI”), failed to exercise reasonable

care in c o nducting a hydrolo gy study and a b ridge h ydrolics study in the early 1960s for use by the L ouisiana Dep a rtment of Transportation (“LDOT”) in constructing Interstate 12. The USGS technicians who conducted the studies allegedly underestima t ed the potential f or significant flooding and ignored other pertinent details. I nterstate 12 was built in accordance with t h e USGS’s design, and the design deficiencies allegedly resulted i n a r i v er crossing that fails to

a l l o w a s u f

f icient flow o f water during periods of extremely heavy rainfall. In such cases, the r ain water backs up, creating the p otential for flooding o f nearby properties. The last inc i d e n t of significant flooding o ccurred in April 1983, when b a c k w a t e r i n u n d a t e d t h e properties o f some upstream l a ndowners, includin g t h e plaintiffs in this action. 1 Plaintiffs were among t h e members of a class that
p r e v a iled in a suit against the State of L ouisiana following t hat 1983 flo o d

. Although t he state court awarded substantial damages, Louisiana h as never paid that award. Unable to c ollect from the State, p l a i n t iffs turned their a ttention to the f e d e r al treasury, filing administrative c l aims i n February 2008 w ith t he DOI under the F TCA for damages caused by USGS’s negligence in preparing the two

1 Accord ing to p l aintif f s ’ exp ert, rain events of this m agnitud e are exp ected in the Tangip ahoa River bas in about once every tw enty years , b u t t h i r t y years have now p as s ed
w ithout a recurrence. 2 Case: 13-30094 Document: 00512349949 Page: 2 Date Filed: 08/21/2013No. 13-30094

reports at issue w hich contributed to the faulty design. The D OI denied those

c l a i ms—in part, because t hey had b een filed outside t he two-year FTCA limitations period. Plaintiffs t hen s ued the government in t h e Eastern District of Louisiana. The government responded w ith a motion to dismiss for lack of jurisdiction, asserting that plaintiffs’ failure to submit their administrative claims within the FTCA l i mitations period left the dist rict court without subject matter jurisdiction. Plain t i f f s o pposed that motion, c o ntending that (1) they only learned of the USGS’s p otential 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 m a i n t enance of the improperly designed highway is a continuing t o r t that keeps the FTCA limitations period from starting to run for as long as the damage continues to occur. The district court recogn i zed that the F ifth Circuit has not yet decided whether a continuing tort under state law may postpone commencement of the limitations period on a corresponding FTCA c l aim. 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 d iscovery, ruled t he court, preceded plaintiffs’ filing of their administrativ e c l a i m s b y more than two years, precluding the court from adjudicating their subsequently filed federal a ction. The c o u r t t herefore dismissed plaintiffs’ action and entered judgment for the government. On appeal , p l a intiffs do not challenge the court’s f inding of the date of their discovery. They do, however, reassert t heir c ontention that t h e i r c o mplaint alleged a continuing t o r t which d elayed commencement of the running of the FTCA’s limitations period. As such, pl a i n t i ffs contend, their FTCA claims are not time-barred.

3 Case: 13-30094 Document: 00512349949 Page: 3 Date Filed: 08/21/2013No. 13-30094 II. STANDARD OF REVIEW “When a d d r e s sing a dismissal for lack of subject matter jurisdiction, we review application of law de n ovo and disputed factual findings for clear error.” 2 The party asserting jurisdiction—here, the p l a i n tiffs—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 S tates may not b e sued without its consent and that the existence of c o n s ent is a p rerequisite for jurisdiction.” 4 Federal courts have jurisdiction to hear s u its against the government only w ith “a clear statement from the United S tates waiving s overeign immunity, together with a claim f alling within the terms of t he w aiver.” 5 The FTCA provides that waiver, but only “under c i r c u m s t ances where the United S tates, if a private person, would be liable t o the c laimant in accordance w ith the law of the place where the act or omission occurred.” 6 As the tortious acts alleged in this case o ccurred in Louisiana, plaintiffs may sue the government if Louisiana law would impose tort liability on a private person for the wrongs alleged. Before su i n g u n d e r t h e F T C A , h o w ever, plaintiffs first had t o exhaust their remedies with the DOI within two y ears of the date on which t h eir F TCA claims

2 A l exa nder v. U

ni ted Sta tes (

In re Fem a Tra il er Form a l dehyde Prods. Li a b. Li ti g. ) , 646 F. 3d 185, 189 (5th Cir. 2011)

.

3 Id. ; V a nta ge Tra i l ers, Inc. v
. Bea l l Corp

. , 567 F. 3d 745, 748 ( 5th Cir. 2009)

.

4 U ni ted Sta tes v
. M

i tchel l , 463 U. S. 206, 212 ( 1983)

.
5 U ni ted Sta tes v. Whi te M ounta in A

p a che Tri be , 5 3 7 U

. S. 465, 472 ( 2003) ( citations
om itted ) ; see al so La ne v
. P ena , 518 U

. S. 187, 192 ( 1996) ( noting that the w aiver m ay not be im p lied , but “m us t be unequivocally exp res s ed in s tatutory text”)

.

6 28 U

. S. C. § 1346( b) (1)

. 4 Case: 13-30094 Document: 00512349949 Page: 4 Date Filed: 08/21/2013No. 13-30094

accrued. 7 As “li m i t a t i o ns periods in statutes waiving sovereign i mmunity are jurisdictional,” 8 p laintiffs’ failure to file their claims timely before the DOI would preclude a federal court from t hereafter hearing those claims. The parties agree that we define accrual in this case a c cording to f ederal law, asking “when the plaintiff[s] discover[ed], or, in the exercise of reasonable diligence should have discovered, the fact of the i njury and its cause.” 9 Although several federal courts have a ddressed whether state law may indefinitely postpone the commencement of the running of prescription when the w rongful acts and dam a ges are ongoing, 1 0 that question remains open in this circuit. 1 1 We do not reach it today, however, as w e conclude that t h e t o r t i o us acts that plaintiffs allege do not constitute a continuing tort under Louisiana law.

B. Louisiana’s Continuing-Tort Doctrine For the p urpose of d etermining when prescription starts to run, L ouisiana distinguishes between injuries resulting from continuous operating causes and

7 See 28 U

. S. C

. §§ 2401( b) , 2675.

8 In re Fem a Tra i l er Form a l deh y d e P r o d s
. Li a b. Li ti g. , 646 F

. 3d at 190 ( citing Ra m m i ng v
. U

ni ted Sta tes , 281 F. 3d 158, 165 (5th Cir. 2001) ).

9 Bush v
. U

ni ted Sta tes , 823 F. 2d 909, 911 ( 5th Cir. 1987)

.

1 0 S ee, e. g. , H

oery v
. U

ni ted St a t e s , 3 24 F. 3d 1220, 1223- 24 ( 10th Cir. 2003) ; A rca de Wa ter D i st. v. U

ni ted S t a tes , 940 F

. 2d 1265, 1269 ( 9th C ir. 1991) ; G ross v
. U ni ted Sta tes , 676 F

. 2 d 2 9 5 , 300 ( 8th Cir. 1982) ; Kennedy v
. U ni ted Sta t es , 643 F. Sup p
. 1072, 1079 ( E. D

. N

. Y

. 1986)

.

1 1 See In re Fem a Tra i l er Form a l dehyde Prods. Li ab. Li ti g. , 646 F .3d at 189 ( evad ing the ques tion w hether a s tate’s continuing- tort doctrine may d elay accrual of an FTCA claim and noting only that the p laintif f “ha[ d ] not cited any Fif th Circui t c a s e l a w ind icating that accrual s hould be d elayed w h e n t h e p laintif f k now s about the injury and could have d is covered , w ith a reas onable inquiry, the

. . . G overnm ent’s [] p otential liability”)

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those that result from discontinuous operating causes. In Hogg v. Chevron USA, Inc. , 1 2 the Louisiana Supreme Court stressed this point: When the operating cause of the injury is continuous, giving r ise to suc c essive damages, prescription begins to r un from the day t h e damage was c ompleted and the own e r a c quired, or should have acquired, k n o w ledge of the damage. When the o perating cause of the injury i s discontinuous, there is a multiplicity of causes of action and of corresponding prescriptive periods. 1 3 Thus, whether the government’s alleged negligence would be a continuing tort i s , i n part, “a conduct-based [inquiry, with the court] asking w hether t he tortfeasor perpetuates t he injury through overt, persistent, a nd ongoing acts.” 1 4 In Hogg , the court w as building on its earlier sta tement i n Crump v. Sabine River Authority 1 5 that “ a continuing tort is occasioned by [continuing] unlawful acts, not the continuation of the ill effects of an original, wrongful act.” 1 6 In any case, it is clear that b oth the injury a n d t h e w r ongful conduct that caused it must be continuous. 1 7

1 2 45 So. 3d 991 ( La. 2010)

.

1 3 Id. at 1003 ( citations om itted ) (quoting O f f icial R evis ion C o m m e n t s ( c) to L A

. C I V

. C O DE art. 3493 (1983) )

.

1 4 I d. at 1003.

1 5 737 So. 2d 720 (La. 1999)

.

1 6 I d. at 728.

1 7 See Terrebonne Pa ri sh Sch. Bd. v
. Col um bi a G ul f Tra nsm i ssi on C

o. , 290 F. 3d 303, 323 (5th C i r
. 2 0 02) ( “For a continuing tort to exis t [ und er Louis iana law ]

. . . there m us t generally be continuing w ron gf ul cond uct, coup led w ith continuing d am age. ”) ; Roberts v
. M urp hy O i l , 577 So. 2d 308, 311 ( La. Ap p
. 4th C ir. 1 9 9 1 ) ( “ [ T ]he d octrine of continuing tort ap p lies o n l y w h e n both the alleged w rongf ul act and the d am ages caus ed by it are continuou s
. ”) ( citing S

. Cent. Bel l Tel

. Co. v
. Texa co, Inc. , 418 So. 2d 531 ( La. 1982) ) ; F R A N K L. M A R A I ST A N D T H OM A S C. G A L L I GA N , 1- 10 L OU I SI A N A T OR T L A

W § 10. 04 ( 2012) ( “[ I] f both the torti ous conduct and the da m a g es conti nue , the tort may be deem ed a ‘continuing ’ o n e and p res crip tion m ay not begin to run until the w rongf ul cond uct ceas es
. ”) (em p has is ad d ed )

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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 b y the migration o f gasoline from formerly leaking unde r g r ound storage tanks located on neighboring property. At the time of the suit, the leaked gasoline remained on the plaintiffs’ property, bu t the

o p e r a t i n g cause of the contamination h ad abated ten years earlier w hen the leaking tanks were removed. 1 8 The Hogg plaintiffs contended that t he presence of the gasoline on thei r p r operty constituted a continuing trespass, so that prescription would not begin to run until the gasoline was r e move d

. 19 T he Louisiana Supreme Court disagreed, h o lding that the operating cause of the plaintiffs’ injuries w as t he leaking u n derground storage tanks, and that prescri p t i o n b egan to run when the t anks were removed and the leaking stopped. 2 0 The court also rejected the pla i n t i f f s ’ contention that the failure to

c o ntain or remediate the l eakage constituted a c onti n u i n g w r o n g , s u s p e n d i n g t h e commencement of t h e r unning of prescr i p t i o n. Citing Crump , the court explained that “the breach of a duty to right an initial wrong simply cannot be

a continuing wrong t h a t suspends the running of prescription, a s that is the purpose of every lawsuit and the obligation of every tortfeasor.” 2 1 C r ump , too, is illustrative. There, the plaintiff contended that a c a n a l built on neighboring property caused an ox-bow portion of a bayou on her land

1 8 45 So. 3d at 995.

1 9 I d. at 1002.

2 0 Id. at 1004- 06; see a l so M a ri n v. Exxon M

obi l Corp

. , 48 So. 3d 234, 253- 55 ( La. 2010) ( oilf ield was te was d ep os ited into unlined p its and m igrated onto p laintif f s ’ p rop erty over tim e; court f ound no continuing tort becaus e the tortious cond uct ceas ed w hen the pits were clos ed
m ore than a d ecad e bef ore p laintif

f s f iled s uit)

.

2 1 Hogg , 45 So. 3d at 1007 ( citing Crum p , 737 So. 2d at 729)

. 7 Case: 13-30094 Document: 00512349949 Page: 7 Date Filed: 08/21/2013No. 13-30094

to dry u p, depriv i n g h e r o f access through the bayou to a nearby lake. 2 2 The Louisiana Supreme C ourt held that the continued presence of the c a nal was not

a continuing t ort: “[T]he actual digging of the canal was t he operating cause of the injury[, and t]he continued pr e s e n c e 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.” 2 3 Refusing to s uspend the r u n n ing of p r escription, the court concluded that plaintiff’s negligence action had prescribed before she filed suit. 2 4 Taking direction fro m H ogg and Crump , we conclude that the operating cause of the damage alleged i n this case was the U SGS’s furnishing of the two allegedly negligent repo r ts which resulted i n a highway design that d id not allow sufficient flow of water d u r i n g periods o f heavy rainfall. The USGS’s conduct

w a s not perpetuated through overt, persistent, and ongoing acts: Its only involvement with the Tangipahoa R iver c r ossi n g (at least o f which plaintiffs have m a de us aware) ended f orty years b efore plaintiffs f iled suit. And, to the

e x t ent t hat federal maintenance of t he I-12 highway could be considered a “c o n t i n u ing” series of acts, such maintenance is not “wrongful,” 2 5 a nd does not

c o n t i n u e to harm plaintiffs. Unlike the wrongful acts in Cooper v. Louisiana Department of Public Works 2 6 —the only Louisiana case that plaintiffs cite for

2 2 C rum p , 737 So. 2d at 723.

2 3 I d. at 727- 728 ( em phas is ad d ed )

.

2 4 I d

. at 731.

2 5 See, e. g. , i d. at 728 ( as s um ing, a rguendo , that the d ef end ant ow ed the p laintif f a d uty not to d ig the canal, and conclud ing that this d uty w as breached only d uring the tim e that the d igging occurred )

.

2 6 870 So. 2d 315 ( La. Ap p
. 3rd C ir. 2004)

. I n Coop er , p laintif f s sued the s tate af

ter its
cons truction of lock s and d a m s i nterf ered w ith their s ervitud es of drainage and caus ed p erm anent f

lood ing to their land s. Id. at 319- 20. Analogizing to other cas es in w hich “courts held that d ebr i s and other objects placed on another’s p rop erty cons tituted a continuing 8 Case: 13-30094 Document: 00512349949 Page: 8 Date Filed: 08/21/2013No. 13-30094

support—the harm occasioned by the w r o n g f u l acts h ere ended when the f l o o d ing subsided, decades before plaintiffs sued under the FTCA. Case law fro m both Louisiana 2 7 a nd f

ederal 2 8 courts supports the di s trict c o urt’s c onclusion that plaintiffs have n ot alleged a continuing tort under Louisiana law. A s we agree,

we hold that plaintiffs’ claims accrued, and the F T C A ’ s two-year limitations period expired, long b efore plaintiffs brought t heir claims b efore the DOI. The district court correctly found itself without jurisdiction and correctly dismissed accordingly.

IV. CONCLUSION As plaintiffs have n ot been aggrieved by a Louisiana continuing tort, they have failed t o bear their burden of proving s ubject matter jurisdiction. We therefore affirm the district court and leave for another d ay and another case the question whether, by continuing the accrual of a claim b rought under the FTCA,

a continuing t ort may delay the commenc e m e n t o f that statute’s limitations period.

tres p as s ”— cas es in w hich “p res crip tion d id not run until the tres pas s wa s a b a t e d ”

— t h e C o op er court held that pres crip tion would not run until the f lood ing had s ubs id ed

. H ere, and unlik e in Coop er , there has been no p erm anent f lood ing or any alleged d rainage- related d am age in the t h i r t y years s ince the 1983 f lood

. The s up p ort that Coop er f ind s in Louis iana tres p as s cas es d oes nothing to help p laintif f s here.

2 7 See Pra cht v
. Ci ty of S hrev ep ort , 830 So. 2d 546, 550- 51 ( L a. Ap p
. 2d Cir. 2002) ( conclud ing that s ep arate ins tances of f lood ing caus ed by the negligent m aintena n c e of a d rainage canal d id not cons titute a continuing tort) ; Roberts , 577 So. 2d at 311 ( “[ R] ep eated ins tances of f

lood ing caus ed by the negligent alteration of d rainage are s ep arate and d is tinct events w hich d o not s erve to interrup t p res crip tion. ”)

.

2 8 See D el a ney v
. U

ni on Pa c. R. R. C

o. , 2011 U

. S. Dis t. LEX IS 22076, *9- 10 ( E. D

. La. M ar. 4, 2011) ( f

ind ing Louis iana’s continuing- tort d octrine inap p licable, a s r a i l r o a d ’ s n egligent d es ign and m aintenance of a d rainage d itc h and culverts w ere not “overt, p ers is tent and ongoing acts [ , ] ” and the res ulting ins tances of f lood ing w ere “ m e r e l y the ill ef fects of the original, alleged ly w rongf ul act”)

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