IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30965

TIMOTHY R. VENABLE; JULIA MARIE CLOTEAUX VENABLE, 

 Plaintiffs−Appellants

Cross Appellees,

versus

LOUISIANA WORKERS’ COMPENSATION CORPORATION, 

 Defendant−Appellee

Cross Appellant.

Appeals from the United States District Court 

for the Eastern District of Louisiana

Before SMITH, PRADO, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Timothy and Julia Venable appeal a summary judgment in favor of the

Louisiana Workers’ Compensation Corporation (“LWCC”), which cross-appeals 

the denial of its motion to dismiss for want of subject-matter jurisdiction. 

Because the district court lacked subject-matter jurisdiction, we reverse the

United States Court of Appeals

Fifth Circuit

FILED

December 30, 2013

Lyle W. Cayce

Clerk

 Case: 12-30965 Document: 00512484265 Page: 1 Date Filed: 12/30/2013
No. 12-30965

summary judgment and render a judgment of dismissal.

I.

While employed by Greene’s Energy Company, LLC (“Greene’s”), Timothy Venable suffered a heart attack at work in Louisiana waters aboard the 

Stingray drilling barge, which was owned and operated by Hillcorp Energy 

Company (“Hillcorp”). LWCC, Greene’s insurance carrier for purposes of the 

Longshore and Harbor Workers’ Compensation Act (“LHWCA”), immediately 

began providing Venable medical and indemnity benefits pursuant to that act. 

The Venables sued Hillcorp for negligence in federal court, alleging that 

an unreasonable delay in obtaining medical care had resulted in further harm.1 

After extensive pre-trial litigation related to the issue of indemnity, the parties 

participated in a settlement conference. Although LWCC was not yet a party, 

its representative was present.2 Hillcorp and the Venables tentatively agreed 

to settle for $350,000. The Venables contend that, during the settlement conference, the representative for LWCC expressed that LWCC would consent to 

the proposed amount. The district court conditionally dismissed the Venables’ 

claim based on the understanding that it had been settled.

After the settlement conference, however, LWCC refused to sign the 

1 The district court found that it had admiralty and maritime jurisdiction.

2 Under the LHWCA, Venable would forfeit any future benefit from LWCC if he settled 

his claims against Hillcorp without receiving written approval of the settlement from LWCC 

on a Department of Labor-issued form, as required by statute. See 33 U.S.C. § 933(g)(1) 

(2012) (“If the person entitled to compensation . . . enters into a settlement with a third person 

. . . for an amount less than the compensation to which the person . . . would be entitled under 

this chapter, the employer shall be liable for compensation as determined under subsection (f) 

of this section only if written approval of the settlement is obtained from the employer and 

the employer’s carrier, before the settlement is executed, and by the person entitled to compensation . . . . The approval shall be made on a form provided by the Secretary and shall be 

filed in the office of the deputy commissioner within thirty days after the settlement is 

entered into.”).

2

 

 Case: 12-30965 Document: 00512484265 Page: 2 Date Filed: 12/30/2013
No. 12-30965

LS-33 form that the Venables’ counsel had forwarded to LWCC’s attorney. At 

some point after the settlement conference, LWCC learned that Venable would 

likely need a heart transplant, meaning that LWCC would be left liable for 

significant future exposure even with the settlement of third-party claims.

Because LWCC refused to sign, the district court vacated the conditional 

dismissal. The Venables then joined LWCC as a party to enforce LWCC’s purported consent to the settlement, asking the court to order LWCC to execute 

the LS-33 form and otherwise to approve the third-party settlement with Hillcorp. In the alternative, the Venables requested the court to find that LWCC

had waived § 933(g)’s written-approval requirement by consenting to the settlement, such that no written approval was required. LWCC moved to dismiss 

for lack of subject-matter jurisdiction, but the court determined that the waivability of the § 933(g) written-approval requirement raised a substantial federal 

issue that conferred federal-question jurisdiction.

The Venables then moved for partial summary judgment. In turn, 

LWCC filed a cross-motion for summary judgment, contending that the written 

approval requirement of § 933(g) is not waivable, and even if it can be waived, 

the conduct of LWCC’s representative did not constitute a waiver. The district 

court granted summary judgment for LWCC and dismissed the complaint with 

prejudice, holding that LWCC’s decision to withhold consent on the settlement 

was a proper exercise of its power under the LHWCA. The Venables appeal 

that order, and LWCC cross-appeals the denial of its motion to dismiss for lack 

of jurisdiction.

II.

We review a ruling on subject-matter jurisdiction de novo. See PCI 

Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 540 (5th Cir. 2005) 

(quoting Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir. 2003)). “As 

3

 Case: 12-30965 Document: 00512484265 Page: 3 Date Filed: 12/30/2013
No. 12-30965

a court of limited jurisdiction, a federal court must affirmatively ascertain 

subject-matter jurisdiction before adjudicating a suit.”3 A district court should 

dismiss where “it appears certain that the plaintiff cannot prove a plausible 

set of facts that establish subject-matter jurisdiction.”4 The plaintiff has the 

burden of establishing jurisdiction.5

The district court incorrectly found that it had federal-question jurisdiction under 28 U.S.C. § 1331. Because the federal issue raised does not satisfy 

the well-pleaded-complaint rule, the court lacked such jurisdiction.

Section 1331 vests lower federal courts with jurisdiction over “all civil 

actions arising under the Constitution, laws, or treaties of the United States.” 

An action can arise under federal law for purposes of § 1331 in two ways: In a 

well-pleaded complaint (1) the party has asserted a federal cause of action, see 

Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916), or (2) the 

party has asserted a state cause-of-action claim that “necessarily raise[s] a 

stated federal issue, actually disputed and substantial, which a federal forum 

may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities,” see Grable & Sons Metal Prods., Inc. v. 

Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).

First, the Venables have not asserted any federal cause of action against 

LWCC and instead only point to state causes of action in their amended 

3 Sawyer v. Wright, 471 F. App’x 260, 261 (5th Cir.) (per curiam), cert. denied, 133 

S. Ct. 615 (2012); see also Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009).

4 Castro v. United States, 560 F.3d 381, 386 (5th Cir. 2009), vacated on other grounds, 

608 F.3d 266 (5th Cir. 2010).

5 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (“The burden of proof 

for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the 

plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” (citations 

omitted)).

4

 

 Case: 12-30965 Document: 00512484265 Page: 4 Date Filed: 12/30/2013
No. 12-30965

complaint.6 The Venables cannot rely on § 933, which does not create a private 

cause of action.7

Because state law, and not federal law, creates the causes of action at 

issue, we turn to Grable, 545 U.S. at 314, under which a federal court can 

exercise federal-question jurisdiction over a state-law claim if (1) the state-law 

claim raises a substantial federal issue; (2) the parties actually dispute the 

federal issue; and (3) exercising jurisdiction over the particular category of 

cases will not disturb any “congressionally approved balance of federal and 

state judicial responsibilities.” The district court found it had subject-matter 

jurisdiction because it determined that the state-law claims satisfied Grable.8

A federal court can exercise jurisdiction only where the case satisfies the 

well-pleaded-complaint rule, according to which, to assess whether the case 

arises under federal law, the court must look only to “what necessarily appears 

6 The amended complaint includes the following counts: (1) “LWCC should be ordered 

to execute the LS-33 or judgment should be entered providing that written consent to the 

settlement is unnecessary”; (2) “The parties to this litigation detrimentally relied on the 

assurances of LWCC that the amount and other terms of the settlement being negotiated 

would be approved by LWCC and its consent would be given”; (3) intentional misrepresentation; (4) making impossible a condition of the settlement; and (5) abuse of rights. During oral 

argument, the Venables’ counsel indicated that he was relying on federal common law. In 

his view, one “could supplement or inform the district court’s discretion by using analogous 

situations under state law.” Therefore, counsel “gave [the district court] concepts in Louisiana law that would be helpful to inform [the court of its] discretion.” Counsel, however, 

acknowledged that his pleadings had not mentioned this reliance on federal common law.

Moreover, this theory of federal-question jurisdiction does not appear in the briefing, so it is 

waived. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).

7See McLaurin v. Noble Drilling (U.S.) Inc., 529 F.3d 285, 291–92 (5th Cir. 2008) 

(“Importantly, § 933 recognizes that a covered employee may have tort remedies against third 

parties under federal or state law. Section 933 preserves and codifies a maritime worker’s 

common law right to pursue a negligence claim against a third party that is not the employer 

or a coworker; it does not create a cause of action nor establish a third party’s liability for 

negligence.” (citations omitted)).

8 In its order, the district court noted that it was “persuaded that the proper interpretation of the settlement provision of the LHWCA presents a substantial question of federal 

law whose resolution is crucial to the state law claims at issue.”

5

 

 Case: 12-30965 Document: 00512484265 Page: 5 Date Filed: 12/30/2013
No. 12-30965

in the plaintiff’s statement of his own claim . . . unaided by anything alleged in 

anticipation of avoidance of defenses which it is thought the defendant may 

interpose.” Taylor v. Anderson, 234 U.S. 74, 75–76 (1914). Federal courts lack

jurisdiction “over a case in which the complaint presents a state-law cause of 

action, but also asserts that federal law deprives the defendant of a defense he 

may raise, or that a federal defense the defendant may raise is not sufficient 

to defeat the claim.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers 

Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983) (citations omitted).

Furthermore, although the parties may ultimately litigate a federal 

issue in their case, that fact does not “show that the suit, that is, the plaintiff’s 

original cause of action, arises under the Constitution” or the laws of the 

United States. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 

152 (1908). “[A] right or immunity created by the Constitution or laws of the 

United States must be an element, and an essential one, of the plaintiff’s cause 

of action.” Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112 (1936).

The federal issue the district court relied upon—whether a party can 

waive the written-consent requirement under § 933—anticipates LWCC’s prospective defense. That issue would otherwise come up in litigation in the following hypothetical situation: First, without obtaining LWCC’s written consent, the Venables entered into the settlement agreement with Hillcorp. In 

response, LWCC terminated benefits. After that, the Venables sought judicial 

intervention to have the benefits reinstated. At that point, LWCC would argue 

that the Venables had not complied with § 933’s written-consent requirements. 

The Venables would then reply as they have here (and would urge, among 

other reasons) that LWCC had waived § 933’s requirements). In line with this 

hypothetical, the district court’s assessment demonstrates that the Venables 

6

 Case: 12-30965 Document: 00512484265 Page: 6 Date Filed: 12/30/2013
No. 12-30965

raised this federal issue in anticipation of LWCC’s defense.9

Furthermore, none of the Venables’ claims requires proving a federal 

issue as an element of the claim. To the extent they have asserted valid Louisiana claims, the Venables have not shown that those state-law claims require 

proving a substantial federal issue. Certainly, none of them would require 

proving that LWCC had waived § 933’s written-consent requirement.

Even assuming arguendo the district court was correct that the issue of 

waiver under § 933 raises a substantial federal issue for purposes of Grable, 

the well-pleaded-complaint rule forecloses federal-question jurisdiction. We 

therefore do not need to address whether the § 933 written-consent requirement poses a “substantial” federal issue.

III.

We still must examine whether the Venables have established any other 

basis for federal jurisdiction. As a threshold matter, they do not posit that 

§ 933 itself vests federal-court jurisdiction over their claims. Instead, they offer 

a myriad of other theories to demonstrate that the district court had subjectmatter jurisdiction: (1) diversity jurisdiction under 28 U.S.C. § 1332; (2) supplemental jurisdiction under 28 U.S.C. § 1367; (3) admiralty and maritime jurisdiction under 28 U.S.C. § 1333; and (4) jurisdiction under the district court’s 

“inherent power to enforce [] settlement[s].”

As to the first theory, § 1332 requires “the matter in controversy [to] 

exceed[] the sum or value of $75,000, exclusive of interest and costs, and [be]

9 The district court’s order notes, “If a § 933(g) is enforced as written then Plaintiffs 

cannot prevail on their state law claims because the LHWCA will necessarily control and 

preempt any state law to the contrary.” If § 933(g)’s written-consent requirement would necessarily preempt any contrary state law, LWCC would raise this issue as an affirmative 

defense.

7

 

 Case: 12-30965 Document: 00512484265 Page: 7 Date Filed: 12/30/2013
No. 12-30965

between . . . citizens of different States . . . .”10 Both the Venables and LWCC, 

however, are citizens of Louisiana.

As to the second theory, § 1367 “grants supplemental jurisdiction over 

other claims that do not independently come within the jurisdiction of the district court but form part of the same Article III ‘case or controversy.’” State 

Nat’l Ins. Co. v. Yates, 391 F.3d 577, 579 (5th Cir. 2004). “[I]n any civil action 

of which [a] district court [has] original jurisdiction, [that] court[] shall have 

supplemental jurisdiction over all other claims that are so related to claims in 

the action . . . that they form part of the same case or controversy . . . .” 28 

U.S.C. § 1367(a) (2012).11 A claim forms part of the same case or controversy 

if the “claim[ is] so related to the original claims that [it] derive[s] from a common nucleus of operative fact.” Bella v. Davis, 531 F. App’x 457, 459 (5th Cir. 

2013) (per curiam).

The claims the Venables assert against LWCC in their amended complaint do not derive from the same nucleus of operative facts as does their negligence claim against Hillcorp. LWCC’s potential waiver of § 933(g)’s writtenconsent requirement occasioned by its conduct during and after a settlement 

conference depends on facts that are completely different from those related to 

any torts committed by Hillcorp years before. The district court therefore could 

not have exercised supplemental jurisdiction over the claims the Venables

bring against LWCC.

As to the third theory, § 1333 vests exclusive federal jurisdiction involving “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in 

10 28 U.S.C. § 1332 (2012); see also Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 

(5th Cir. 2013).

11 Even if the claim falls within § 1367(a), the exceptions specified in § 1367(b) and (c) 

may apply. Because § 1367(a) does not apply, however, we do not need to determine whether 

an exception nevertheless precludes jurisdiction.

8

 

 Case: 12-30965 Document: 00512484265 Page: 8 Date Filed: 12/30/2013
No. 12-30965

all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. 

§ 1333 (2012). “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of 

location and of connection with maritime activity.” Jerome B. Grubart, Inc. v. 

Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The locality test 

assesses “whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Id. The connection 

test requires two showings:

A court, first, must assess the general features of the type of incident involved, to determine whether the incident has a potentially 

disruptive impact on maritime commerce. Second, a court must 

determine whether the general character of the activity giving rise 

to the incident shows a substantial relationship to traditional maritime activity.

Id. (citations and internal quotation marks omitted).

The Venables’ claims against LWCC do not satisfy the locality test.12 

The Venables conflate the district court’s jurisdiction over their negligence 

claim―the basis of which appears to have occurred on navigable water―with 

the claims they assert against LWCC. They allege that LWCC committed various state-law torts by its conduct during or after the settlement conference. 

But none of that conduct occurred on navigable waters, nor were these alleged 

torts caused by a vessel on navigable water.13 Therefore, the Venables cannot 

claim admiralty jurisdiction as the basis for subject-matter jurisdiction.

As to their fourth and final theory, the Venables assert that the district 

12 We therefore do not need to address whether the Venables’ claims satisfy the connection test.

13 See Miller v. Griffin-Alexander Drilling Co., 873 F.2d 809, 812 (5th Cir. 1989) (“We 

see no reason for expanding admiralty jurisdiction to cases with such scant involvement of 

maritime locations.”).

9

 

 Case: 12-30965 Document: 00512484265 Page: 9 Date Filed: 12/30/2013
No. 12-30965

court could exercise jurisdiction over these claims by its “inherent power to 

enforce [] settlement[s].” They appear to suggest that the court could exercise 

its ancillary-enforcement jurisdiction as a basis for subject-matter jurisdiction.

In Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 

(1994), the Court explained when a federal court can retain jurisdiction over a 

settlement agreement by exercising this ancillary enforcement jurisdiction. 

There, Guardian Life Insurance Company (“Guardian”) terminated Kokkonen’s general agency agreement, prompting Kokkonen to sue in state court,

whereupon Guardian removed to federal court. See id. at 376. Before jury 

deliberations, “the parties arrived at an oral agreement settling all claims and 

counterclaims, the substance of which they recited, on the record, before the 

District Judge in chambers.” Id. Although the judge was aware of the settlement, the dismissal order made no reference to the settlement agreement. Id.

at 377. Thereafter, the parties disagreed as to Kokkonen’s obligation to return 

certain files, and Guardian moved to enforce the agreement. Id.

In determining whether a federal court could exercise its inherent jurisdiction, the Kokkonen Court first explained that state law governs the enforcement of contracts, including settlement agreements that result in the dismissal 

of federal suits. See id. at 378. The Court therefore held that an action to 

enforce a settlement agreement “is more than just a continuation or renewal 

of the dismissed suit, and hence requires its own basis for jurisdiction.” Id.

Having established that federal courts require an independent jurisdictional basis to enforcement settlement agreements, the Court then described 

two general situations in which a federal court can exercise independent “ancillary jurisdiction”: “(1) to permit disposition by a single court of claims that are, 

in varying respects and degrees, factually interdependent; and (2) to enable a 

court to function successfully, that is, to manage its proceedings, vindicate its 

authority, and effectuate its decrees.” Id. at 379–80 (citations omitted). As 

10

 Case: 12-30965 Document: 00512484265 Page: 10 Date Filed: 12/30/2013
No. 12-30965

was the case in Kokkonen, the first basis does not generally apply in the instant 

context because the terms of a settlement agreement usually will not be “factually interdependent” with the claims underlying the original lawsuit.14 The 

Court further noted that the second basis did not apply to the circumstances 

we face here because (1) the district court, in its order, had not expressly 

retained jurisdiction over the settlement agreement, and (2) the order did not 

incorporate the settlement agreement.15 

Applying Kokkonen, we likewise require one of those two showings for a 

district court to exercise ancillary jurisdiction in enforcing a settlement agreement.16 The Venables do not have a settlement agreement that they seek to 

enforce but instead want a federal court to compel LWCC to consent to their 

tentative agreement with Hillcorp. Under Kokkonen, a district court cannot 

exercise ancillary jurisdiction to compel a third party’s consent to a proposed, 

but not final, settlement agreement; none of the slew of cases cited by the 

14 Kokkonen, 511 U.S. at 380 (“[T]he facts underlying respondent’s dismissed claim for 

breach of agency agreement and those underlying its claim for breach of settlement agreement have nothing to do with each other; it would neither be necessary nor even particularly 

efficient that they be adjudicated together.”).

15 Id. at 381 (“The situation would be quite different if the parties’ obligation to comply 

with the terms of the settlement agreement had been made part of the order of dismissal—

either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement 

agreement) or by incorporating the terms of the settlement agreement in the order. In that 

event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction 

to enforce the agreement would therefore exist.”).

16 See, e.g., Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 430–31 (5th Cir. 2002); 

Woolwine Ford Lincoln Mercury v. Consol. Fin. Res., Inc., No. 00-60314, 245 F.3d 791 (table),

2000 WL 1910184, at *2 (5th Cir. Dec. 27, 2000) (per curiam) (unpublished). See generally

Andrew S. Hanen & Jeffrey M. Benton, The Enforceability of Settlement Agreements, 40 THE 

ADVOC. (TEX.) 69, 70 (2007) (“It is clear after Kokkonen . . . that a party wishing to preserve 

a district court’s jurisdiction over a settlement agreement can only do so in one of two ways: 

(1) through an express retention of jurisdiction by the court or (2) by incorporation of the 

settlement agreement into the judgment.”).

11

 

 Case: 12-30965 Document: 00512484265 Page: 11 Date Filed: 12/30/2013
No. 12-30965

Venables suggests as much.17 Therefore, they have not demonstrated that the 

district court could exercise ancillary jurisdiction.

Because the district court lacked subject-matter jurisdiction over the 

state claims the Venables brought against LWCC, we need not decide whether 

the court correctly determined that LWCC’s decision to withhold consent on 

the settlement was a proper exercise of its power under the LHWCA. The 

summary judgment is REVERSED, and a judgment of dismissal for want of 

jurisdiction is RENDERED.

17 The Venables principally rely on Bell v. Schexnayder, 36 F.3d 447 (5th Cir. 1994),

decided shortly after Kokkonen. In Bell, however, the parties had entered into a settlement 

agreement, and the district court’s order expressly retained jurisdiction over the settlement 

agreement. See id. at 449 (“On October 14, the court signed a sixty day order of dismissal. 

The order states that the court, ‘having been advised by counsel for the parties that the above 

action has been settled,’ was dismissing the case ‘without prejudice to the right, upon good 

cause shown within sixty (60) days, to reopen it if settlement is not consummated and seek 

summary judgment enforcing the compromise.’”). Bell does not apply where the parties have 

not entered into a settlement agreement.

12

 

 Case: 12-30965 Document: 00512484265 Page: 12 Date Filed: 12/30/2013