CITY OF WALKER; City of Denham Springs; Williamson Eye Center (APMC); Timothy John Kinchen; Shannon Farris Kinchen, Plaintiffs-Appellees v. State of LOUISIANA, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellee v. Gilchrist Construction Company, Incorporated; Boh Brothers Construction Company, L.L.C.; James Construction Group, L.L.C.; Modjeski & Masters, Incorporated; Gulf Engineers and Consultants, Incorporated; Barriere Construction Company, L.L.C.; G.E.C., Incorporated; GoTech, Incorporated; Geo Engineers, Incоrporated; SJB Group, L.L.C.; Eustis Engineering, L.L.C., formerly known as Eustis Engineering Services, L.L.C., Defendants-Appellants
No. 17-30768
United States Court of Appeals, Fifth Circuit
Filed November 30, 2017
877 F.3d 563
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
Johnson addressed the residual clause under the violent-felonies portion of the ACCA, which Winbush and Vickers distinguished from the serious-drug-offense portion. Torres‘s discussion of how to define “described” in the Immigration and Nationality Act does not undermine Winbush‘s and Vickers‘s discussions of the word “involving” in the ACCA. Those decisions based the interpretation of
Because no Supreme Court decisions “expressly or implicitly” overrule Winbush or Vickers, we AFFIRM.4
James M. Garner, Esq., Ashley Gremillion Coker, Esq., Martha Y. Curtis, Esq., Joshua Simon Force, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, Timothy William Hassinger, Esq., Galloway, Johnson, Tompkins, Burr & Smith, Mandeville, LA, Lawrence E. Marino, Oats & Marino, Lafayette, LA, for Defendant-Appellee
Michael Robert Carson Riess, Esq., Charles Bruce Colvin, Kingsmill Riess, L.L.C., New Orleans, LA, for Defendant-Appellant Boh Brothers Construction Company, L.L.C.
Murphy J. Foster, III, Esq., John Thomas Andrishok, Thomas R. Temple, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendant-Appellant James Construction Group, L.L.C.
Keith Joseph Bergeron, Brian Schaps, Deutsch Kerrigan, L.L.P., New Orleans, LA, for Defendant-Appellant Modjeski & Masters, Incorporated
Albert Dale Clary, Brad M. Barback, Adrian G. Nadeau, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendants-Appellants Gulf Engineers and Consultants, Incorporated, G.E.C., Incorporated, GoTech, Incorporated, SJB Group, L.L.C.
Gregory G. Gremillion, William Glenn Burns, Esq., Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, Thomas William Darling, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Baton Rouge, LA for Defendant-Appellant Barriere Construction Company, L.L.C.
Steven Bernard Loeb, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendаnts-Appellants Geo Engineers, Incorporated, Eustis Engineering, L.L.C.
STEPHEN A. HIGGINSON, Circuit Judge:
This class action lawsuit alleges that a concrete barrier installed as part of a highway widening project exacerbated flooding caused by an August 2016 rainstorm. Appellant James Construction Group, LLC removed from state court to the United States District Court for the Middle District of Louisiana. The district court subsequently granted appellees’ remand motion, and аppellants appeal that order.
Appellants assert three bases for removal: (1) Class Action Fairness Act (CAFA) jurisdiction; (2) federal officer jurisdiction; and (3) federal question jurisdiction. We affirm the district court‘s remand as to CAFA and federal officer jurisdiction, and dismiss the appeal for lack of jurisdiction as to the district court‘s federal question determination.
I.
In August 2016, southern Louisiana experienced several conseсutive days of heavy rain. The rain led to widespread flooding, which damaged homes and businesses.
On January 5, 2017, appellees filed a Class Action Petition for Damages and Injunctive Relief in the 19th Judicial District Court for the Parish of East Baton Rouge. Appellees named twenty-one defendants: the State of Louisiana through the Louisiana Department of Transportation and Development (LA DOTD) and twenty private firms that participаted in the design and construction of the 2009 “Geaux Wider” project. Geaux Wider widened sections of Interstate 12 in East Ba
After appellant James Construction Group, LLC removed to the District Court for the Middle District of Louisiana, appellees moved to remand to state court. The district court granted the motion to remand, and this appeal followed.
II.
We begin by reviewing our jurisdiction to hear this appeal. Appellants assert three bases for removal: (1) Class Action Fairness Act jurisdiction, under
A.
“Orders remanding a case to state court are generally not reviewable.” Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460 (5th Cir. 2016) (citing
B.
III.
The district court held that this case falls under CAFA‘s local controversy exception, a determination we review de novo. Williams v. Homeland Ins. Co. of N.Y., 657 F.3d 287, 290 (5th Cir. 2011). The parties moving for remand bear the burden of proof that they fall within an exception to CAFA jurisdiction. Id. “If the applicability of an exception [to CAFA jurisdiction] is not shown with reasonable certainty, federal jurisdiction should be retained.” Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 338 (5th Cir. 2016). “The language, structure, and history of CAFA all demonstrate that Congress contemplated broad federal court jurisdiction with only narrow exceptions.” Id. at 337 (internal modification omitted).
“CAFA provides the federal district courts with ‘original jurisdiction’ to hear a ‘class action’ if the class has more than 100 members, the parties are minimally diverse, and the ‘matter in controversy exceeds the sum or value of $5,000,000,‘” Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592, 133 S. Ct. 1345, 185 L. Ed. 2d 439 (2013) (quoting
(i) over a class action in which—
(I) greater than two-thirds of the members of all proposed plaintiff classes in thе aggregate are citizens of the State in which the action was originally filed;
(II) at least 1 defendant is a defendant—
(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any related conduct of eaсh defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons.
The Robertson petition is short on facts.6 It asserts that “some years prior to August 12, 2016, [LA] DOTD constructed a crossing of the Highway I-12 crossing of the [sic] Tangipahoa River flood plain near the town of Robert, La.” It then references another case, Jean Boudreaux v. The State of Louisiana, DOTD, No. 71408, (21st Judicial District Court, Parish of Tangipahoa, filed Apr. 6, 1984), and states that “[t]he allegations in this lawsuit are the exact same claims of wrongful acts as set out” in Boudreaux. The petition in Robertson alleges that in Boudreaux “it was proved thаt the construction of Louisiana I-12 across the flood plain of the Tangipahoa River ... caused the flood waters of April, 1983 to back up above I-12 and flooded the class members North of I-12....”
As noted, appellees allege that they were harmed in the August 2016 floods when portions of I-12 trapped water north of the highway. But the two suits focus on different construction projects in different
In short, Robertson alleges that a different construction project, initiated more than twenty-five years before Geaux Wider, worsened flooding in a different parish. Accordingly, we hold that Robertson is not the sort of “similar” class action that would support federal jurisdiction over this otherwise local controversy. The district court therefore correctly declined to exercise CAFA jurisdiction.
IV.
Finally, appellants argue that James Construction was entitled to a federal forum because it was acting under a federal officer when it designed and built Geaux Wider. “[F]ederal officer removal under
Under
Appellants assert that James Construction was acting under a federal officer because its work—including the project‘s hydraulic design—was subject to inspection and approval by federal regulators. “The words ‘acting under’ are broad, and ... the [federal officer removal] statute must be ‘liberally construed.‘” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147, 127 S. Ct. 2301, 168 L. Ed. 2d 42 (2007) (quoting Colorado v. Symes, 286 U.S. 510, 517, 52 S. Ct. 635, 76 L. Ed. 1253 (1932)). “But broad language is not limitless.” Id. In Watson, plaintiffs sued a cigаrette manufacturer alleging it had manipulated testing results to show lower nicotine and “tar” content in cigarettes marketed as “light.” Id. at 146, 127 S. Ct. 2301. The Eighth Circuit held that because the Federal Trade Commission mandated that Philip Morris use the testing regime plaintiffs challenged—and enforced that mandate with ongoing monitoring, laboratory inspections, independent verification, and enforcement actions against manufacturers—Philip Morris wаs “acting under” a
The Supreme Court reversed, and held that “the fact that a federal regulatory agency directs, supervises, and monitors a company‘s activities in considerable detail” is insufficient to meet the “acting under” requirement. Watson, 551 U.S. at 145, 127 S. Ct. 2301. The Court explained its holding in detail:
[A] highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm‘s compliancе (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase “acting under” a federal “official.” And that is so even if the regulation is highly detailed and even if the private firm‘s activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed аgainst private firms in many highly regulated industries. Neither language, nor history, nor purpose lead us to believe that Congress intended any such expansion.
Id. at 153 (citation omitted). The Court, however, distinguished cases in which a “private contractor ... is helping the Government to produce an item that it needs.” Id. The opinion noted that although “close supervision” may be “sufficient to turn a private contractor into a private firm ‘acting under’ a Government ‘agency’ or ‘officer,‘” the same is not true when a company is merely “subjected to intense regulation.” Id.
James Construction asserts the “government contractor defense” as its required “colorable” federal defense. “That defense provides immunity to contractors for conduct that complies with the specifications of a federal contract.” Crutchfield v. Sewerage & Water Bd. of New Orleans, 829 F.3d 370, 375 (5th Cir. 2016) (citing Boyle v. United Techs. Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988)). But the district court correctly determined that appellants failed to show that James Construction‘s work on I-12 was undertaken pursuant to a federal contract. Although appellants describe Geaux Wider as “federally funded,” they do not assert that James Construction ever entered into a contract with the federal government; rather, James Construction‘s work on the Geaux Wider project was undertaken pursuant to a “Design-Build Agreеment” it entered into with LA DOTD. The contract states that “LA DOTD did advertise for, receive, and accept a Proposal from [James Construction] for work on an LA DOTD DB [Design-Build] project.” The LA DOTD contract obligates James Construction “to complete the Interstate-12 (I-12) Widening DB Project (Project) in a thorough and workmanlike manner to the satisfaction of the appropriate officials of the LA DOTD.” Nothing about this contract suggests thаt James Construction was operating as a federal government contractor or subcontractor. Rather, the arrangement appears to be consistent with the federal government‘s usual approach to highway construction: it approves the project and provides most of the funding, but states build and own the highway. See, e.g., Lathan v. Brinegar, 506 F.2d 677, 682 (9th Cir. 1974) (“Under the Federal-Aid Highway Act, primary responsibility for highway planning, design and construction rеsts on state highway departments, aided by federal assistance.” (citation and footnote omitted)).
As evidence of the federal government‘s participation in the Geaux Wider project, appellants point to the Louisiana Stewardship Agreement entered into between LA
Despite asserting the government contractor defense, appellants have not provided evidence suggesting that James Construction was operating as a federal contractor or had a similar relationship with a federаl supervisor. Absent this relationship between the federal government and a private firm, the Supreme Court‘s decision in Watson instructs that even onerous and specifically enforced regulations do not suffice to show the firm was “acting under” a federal officer. See also Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017); Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008). Accordingly, we affirm the district court‘s remand order as to federal officer jurisdiction because appellants have fаiled to meet their burden to show that James Construction was “acting under” a federal officer when it designed and built the Geaux Wider project.
V.
For the foregoing reasons, we AFFIRM the district court‘s remand as to CAFA and federal officer jurisdiction, and DISMISS for lack of jurisdiction the appeal as to the district court‘s federal question determination.
Paul Richard BUTTS, Plaintiff-Appellant, v. Marcus MARTIN, also known as FNU Martin; Derric Wilson, also known as FNU Wilson; Cheryl Cranmer-Sutton, also known as FNU Cranmer; Ricardo Martinez, also known as FNU Martinez; Christopher Banks, also known as FNU Banks, Michael Harris, also known as FNU Harris; Garod Garrison, also known as FNU Garrison; Theodosia Debricassart, also known as FNU DeBricassart; Harrell Watts, also known as FNU Watts; Geraldo Maldonado, also known as FNU Maldonado, Defendants--Appellees.