United States Court of Appeals Fifth Circuit 

## FILED

June 9, 2004

Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-30887 c/w No. 03-31003 Summary Calendar

JOHN BATIESTE, on Behalf of the Braziel Baptist Church; MARY PAYTON; OCTAVIA PAYTON; ELOISE STEPHENS; GAIL LOCKETT; EVELYN SMITH; ALVIN LOCKETT; JOHNNY LOCKETT; MICHAEL LOCKETT; TYRONE LOCKETT; MARYANN BROWNFIELD; NOAH LOCKETT, JR.; NORRIS LOCKETT; VALERIE LOCKETT,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA; ET AL.,

Defendants,

UNITED STATES OF AMERICA,

Defendant-Appellee.

****************************************

JOHN BATIESTE, on behalf of the Braziel Baptist Church; MARY PAYTON; OCTAVIA PAYTON; ELOISE STEPHENS; GAIL LOCKETT; EVELYN SMITH; ALVIN LOCKETT; JOHNNY LOCKETT; MICHAEL LOCKETT; TYRONE LOCKETT; MARYANN BROWNFIELD; NOAH LOCKETT, JR.; NORRIS LOCKETT; VALERIE LOCKETT,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA; ET AL.,

Defendants,

ATCHAFALAYA BASIN LEVEE DISTRICT,

Defendant-Appellee.* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 Appeals from the United States District Court

Middle District of Louisiana

(02-CV-99)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges

PER CURIAM: *

Plaintiffs appeal both the dismissal of their claims against

the United States (lack of subject ma tter jurisdiction) and the

s ummary judgment awarded the Atchafalaya Basin Levee District

(prescription). (Although Plaintiffs’ notice of appeal from the

dismissal of claims against the United States was filed

prematurely, we have jurisdiction over that appeal. See Young v.

Equifax Credit Info. Servs. Inc. , 294 F.3d 631, 634 n.2 (5th Cir.

2002). We s ua sponte consolidate the appeals. F E D

. R. A PP

. P

.

3(b)(2).)

Contrary to Plaintiffs’ contentions, the district court

determined correctly that R. Christopher Goodwin and Associates was

an independent contractor under the Federal Tort Claims Act, 28

U.S.C . § 1346(b). The scope of work document did not give the

United States the requisite control in order for Goodwin to be

considered an employee under the Act. S ee Logue v. United States
,

412 U.S. 521, 529-30 (1973). Moreover, the majority of the

remaining factors we must consider under Linkous v. United States
,3

142 F.3d 271, 276 (5th Cir. 1998), weigh in favor of independentcontractor status. Because the United States has waived its

sovereign immunity under the Act only as to acts of employees, not

independent contractors, and the claimed wrongful acts were not

committed by Government employees, the district court properly

dismissed the claims against the United States for lack of subject

matter jurisdiction. Id . at 275.

Plaintiffs contend, for the first time on appeal, that the

district court failed to consider their claim of “independent

negligence” on the part of the United States. Because Plaintiffs

do not present any extraordinary reason why they should be allowed

to present this claim for the first time in this appeal, we decline

to consider it. L everette v. Louisville Ladder Co. , 183 F.3d 339,

342 (5th Cir. 1999).

Even if the United States and the District were solidary

obligors as to the 1999 excavation, the timely filing of

Plaintiffs’ claims a gainst the United States does not interrupt

prescription as to the District. As stated, the district court

c orrectly dismissed the claims against the United State s

.

Plaintiffs acknowledge: “Filing suit against a party who is later

determined to be without oblig ation to the plaintiff does not

interrupt prescription against a purported solidary obligor who was

not timely sued”. Etienne v. National Auto. Ins. Co. , 759 So. 2d

51, 56 (La. 2000).4

Fina lly, the doctrines of equitable tolling and c ontra non

valentem do not suspend the running of prescription for Plaintiffs’

claims against the District. Plaintiffs do not claim that it

misled them regarding their ownership and maintenance of the levee,

nor do they claim they were prevented in some extraordinary way

from asserting their rights against the District. S ee Cousin v.

Lensing

, 310 F.3d 843, 848 (5th Cir. 2002), cert. denied

, 123

S . Ct. 2277 (2003). Furthermore, Plaintiffs’ claims against the

District were reasonably knowable, because a search of the public

records would have revealed the District’s involvement in the Bayou

Go ula Bend Levee. S ee Wimberly v. Gatch
, 635 So. 2d 206, 210-11

(La. 1994).

AFFIRMED