* Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30979

Summary Calendar

MARTIN ROBIN, III,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(2:04-CV-2230)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Martin Robin, III, challenges the dismissal of his claims

under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),

2671-2680.

In September 2002, Louisiana’s Governor declared a state of

emergency in anticipation of a tropical storm. In response to the

storm’s reaching Louisiana, the Louisiana Department of Wildlife

and Fisheries (LDWF) mobilized a search and rescue operation.

Pursuant to the request of the supervising LDWF Lieutenant, Special
2

Agent Stephen Clark of the United States Fish and Wildlife Service

(USFWS) assisted in the operation and contributed the use of a

USFWS air boat. Upon the operation’s conclusion, Special Agent

Clark secured the air boat to his truck in order to return it to

the USFWS office. En route to that office, while driving on a

highway that had been closed to non-emergency personnel, Special

Agent Clark struck Robin with his truck.

Robin filed this action against the United States pursuant to

the FTCA, asserting, inter alia, negligence claims. After

discovery, the district court granted the United States’ motion to

dismiss for lack of subject matter jurisdiction, ruling: Special

Agent Clark was entitled to immunity from suit pursuant to LA. REV.

STAT. § 29:735 (“Neither the state ... nor other agencies, nor,

except in case of willful misconduct, the agents’ employees or

representatives ... engaged in any ... emergency preparedness

activities, while complying with or attempting to comply with this

Chapter ... shall be liable for ... any injury to persons ... as a

result of such activity”.); and, accordingly, the United States was

not liable under the FTCA.

Robin’s motion for new trial was denied. Because the motion

was filed ten days after the entry of judgment dismissing Robin’s

claims, it is properly considered a Federal Rule of Civil Procedure

59(e) motion. See Fletcher v. Apfel, 210 F.3d 510, 511-12 (5th

Cir. 2000).
3

A dismissal for lack of subject matter jurisdiction is

reviewed de novo. E.g., Baros v. Texas Mexican Ry. Co., 400 F.3d

228, 234 (5th Cir. 2005). A Rule 59(e) motion must establish

either a manifest error of law or fact or must present newly

discovered evidence. E.g., Ross v. Marshall, 426 F.3d 745, 763

(5th Cir. 2005), cert. denied, 127 S. Ct. 1125 (2007). Although a

ruling on such a motion is generally reviewed for abuse of

discretion, to the extent the motion seeks solely to reconsider a

judgment on its merits, de novo review is appropriate. See

Fletcher, 210 F.3d at 512.

As he did in his Rule 59(e) motion, Robin contends the

district court erred in determining Special Agent Clark was

entitled to immunity pursuant to LA. REV. STAT. § 29:735 because,

inter alia, there is no evidence establishing that the search and

rescue operation was properly authorized. His contentions,

however, were not raised in opposition to the motion to dismiss.

Accordingly, the district court’s denial of his Rule 59(e) motion

was not erroneous. See Ross, 426 F.3d at 763 (“[Rule 59(e)]

motions cannot be used to raise arguments which could, and should,

have been made before the judgment issued. Moreover, they cannot

be used to argue a case under a new legal theory.” (quoting Simon

v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990))).

Moreover, even assuming arguendo these contentions were

properly before the district court, Robin has waived them on appeal
4

due to his inadequate, conclusory briefing. See FED. R. APP. P.

28(a)(9)(A) (appellant’s brief must contain citation to relevant

legal authorities and parts of the record); Dardar v. Lafourche

Realty Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993) (“Questions

posed for appellate review but inadequately briefed are considered

abandoned.”). 

AFFIRMED