Bonvillian Marine Service v. Pellegrin

Case: 20-30767 Document: 00516114720 Page: 1 Date Filed: 12/02/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2021

No. 20-30767 Lyle W. Cayce

Clerk

In re: In the Matter of Bonvillian Marine Service,

Incorporated, As Owner and Operator of the M/V Miss

April in a Cause of Action for Exoneration from or

Limitation of Liability

______________________________

Bonvillian Marine Service, Incorporated,

Plaintiff—Appellant,

versus

Dana Lebouef Pellegrin; Junior Joseph Pellegrin, Jr.;

Baywater Drilling, L.L.C.,

Claimants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:19-CV-14651

Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

The Limitation of Liability Act of 1851 provides vessel owners like

Appellant Bonvillian Marine Service a means of limiting their vessel’s tort

liability to the value of the vessel plus pending freight. See 46 U.S.C.

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§§ 30501–30512. Section 30511(a) of the Act requires vessel owners to “bring

a civil action in a district court of the United States for limitation of

liability . . . within 6 months after a claimant gives the owner written notice

of a claim.”

After finding Bonvillian’s action untimely under § 30511(a), the

district court applied our precedent that “a challenge to the timeliness of a

limitation action is a challenge to subject matter jurisdiction” and dismissed

the action for lack of subject matter jurisdiction. See In re Bonvillian Marine

Serv., Inc., 502 F. Supp. 3d 1078, 1083–84, 1088 (E.D. La. 2020) (citing In re

Eckstein Marine Serv. L.L.C., 672 F.3d 310, 315–16 (5th Cir. 2012)).

The district court was not free to overturn the rule we announced in

Eckstein. Because subsequent Supreme Court decisions have effected an

intervening change in the law that warrants a change in course, we overturn

the Eckstein rule today and REVERSE the district court’s adept decision

accordingly.

I.

On January 19, 2019, a vessel belonging to Bonvillian allided with the

M/V MISS SADIE ELIZABETH, a crew boat docked on the Mississippi

River near Port Sulphur, Louisiana. MISS SADIE ELIZABETH crew

member and Appellee Junior Joseph Pellegrin, Jr., sustained a variety of

personal injuries in the allision. On August 23, 2019, Pellegrin sued

Bonvillian in Louisiana state court. On December 16, 2019, Bonvillian filed a

verified limitation complaint in the Eastern District of Louisiana. Baywater

Drilling, LLC, the owner of the MISS SADIE ELIZABETH and Pellegrin’s

co-Appellee, moved to dismiss Bonvillian’s action for lack of subject matter

jurisdiction.

Baywater’s argument for Federal Rule of Civil Procedure 12(b)(1)

dismissal was straightforward: because Bonvillian filed its limitation action

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more than six months after receiving written notice of a claim with a

reasonable probability of exceeding the value of its vessel, 1 its action was

untimely under 46 U.S.C. § 30511(a) (requiring a limitation action to “be

brought within 6 months after a claimant gives the [vessel] owner written

notice of a claim”); and, because Bonvillian’s action was untimely, the

district court lacked subject matter jurisdiction under the Fifth Circuit rule

announced in In re Eckstein Marine Service L.L.C., in which a prior panel of

this court observed that “[t]his circuit, like several other courts, has held that

a party alleging a limitation petition was not timely filed challenges the

district court’s subject matter jurisdiction over that petition.” 672 F.3d at 315

(“While many statutory filing deadlines are not jurisdictional, we have long

recognized that some are. The Limitation Act’s six-month filing requirement

is one of these.” (footnote omitted)).

The district court heard argument on Baywater’s motion to dismiss

and concluded: (1) that Bonvillian’s action was indeed untimely under

§ 30511(a); (2) that the Fifth Circuit’s Eckstein rule remained controlling

(despite Bonvillian’s contention that the Supreme Court implicitly overruled

Eckstein in the 2015 case of United States v. Kwai Fun Wong, 575 U.S. 402

(2015)); and (3) that, as a result, the court lacked subject matter jurisdiction.

The district court applied the Eckstein rule correctly in this regard, but

as explained below, we now overturn that rule.

1

The factual grounds for Baywater’s Rule 12(b)(1) motion are hotly contested by

the parties, but because we remand on pure legal grounds, we refrain from discussing the

parties’ factual disputes over the agency of Bonvillian’s claims adjuster and the likely value

of the claims against Bonvillian.

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II.

This case requires us to determine as a threshold matter whether to

maintain and apply the rule this court announced in Eckstein (as the Appellees

urge) or to adopt a rule that is better suited to the Supreme Court’s

intervening pronouncements in Kwai Fun Wong and related cases (as

Bonvillian urges). Since the central issue is the interplay between Eckstein and

Kwai Fun Wong, we begin with a brief introduction of those cases.

A.

In Eckstein in 2012, a panel of this court confronted a similar set of

facts in reviewing a district court’s Rule 12(b)(1) dismissal of a vessel owner’s

untimely limitation action. See 672 F.3d 310. In response to the appellant

vessel owner’s argument that timeliness under the Limitation Act “is not a

jurisdictional issue,” the Eckstein panel officially categorized “[t]he

Limitation Act’s six-month filing requirement” as a statutory filing deadline

that is jurisdictional, as opposed to “many statutory filing deadlines [that] are

not.” Id. at 315 (citing In re Tom-Mac, Inc., 76 F.3d 678, 682 (5th Cir. 1996)

(“In their motion to dismiss, Claimants asserted that Tom-Mac’s limitation

of liability action was not timely filed, thus challenging the district court’s

jurisdiction to hear Tom-Mac’s petition.”)).

In the nine years since, Eckstein has been cited for this particular rule

of law in just two Fifth Circuit cases. The lone published 2 decision citing

Eckstein for the proposition that the Limitation Act’s timeliness requirement

is jurisdictional is In re RLB Contracting, Inc., 773 F.3d 596, 601 (5th Cir.

2014) (per curiam) (“A party who contends that a limitation action was not

2

5th Circuit Rule 47.5 provides that unpublished opinions of this court are

not precedent except under the limited—and in this scenario, inapplicable—circumstances

set forth in 5th Circuit Rule 47.5.4.

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timely filed challenges the district court’s subject matter jurisdiction.”). 3

The second and final Fifth Circuit case citing Eckstein for the rule at issue is

our unpublished decision in In re Marquette Transportation Co., 524 F. App’x

989, 991 (5th Cir. 2013) (per curiam) (“We review de novo the district

court[’]s ruling on a motion to dismiss for lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1), including the determination as to whether the

limitation action was timely filed.”).

The district court here correctly found itself bound by the rule we set

forth in Eckstein and restated in RLB Contracting, but the Supreme Court’s

intervening decision in Kwai Fun Wong—which postdated both Eckstein and

RLB Contracting—makes clear that our rule has fallen out of step with the

Supreme Court’s most recent jurisprudence on the jurisdictional import of

statutory “procedural rules” like § 30511(a)’s time bar.

B.

In United States v. Kwai Fun Wong, the Supreme Court deemed time

limitations in the Federal Tort Claims Act (FTCA) nonjurisdictional and

reiterated a burgeoning “clear statement” rule for interpreting statutory

procedural rules in general. As relevant here, the Court observed that given

the “harsh consequences” of deeming such a rule jurisdictional, “procedural

rules, including time bars, cabin a court’s power only if Congress has ‘clearly

state[d]’ as much.” 575 U.S. at 409 (alteration in original) (quoting Sebelius

v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)); see also id. at 409–10

(“Absent such a clear statement, courts should treat [a] restriction as

nonjurisdictional. That does not mean Congress must incant magic words.

3

RLB Contracting, in turn, has been cited for the rule at issue just once—in the

unpublished case of In re Brown, 766 F. App’x 30, 33 (5th Cir. 2019) (“We treat

[§ 30511(a)’s] time limit as a jurisdictional requirement subject to our de novo review.”).

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But traditional tools of statutory construction must plainly show that

Congress imbued a procedural bar with jurisdictional consequences.”

(cleaned up)). Thus, the Court noted, “even when [a] time limit is important

(most are) and even when it is framed in mandatory terms (again, most are),”

it should—absent a clear statement by Congress—be deemed

nonjurisdictional. Id. at 410. In keeping with this clear statement rule, “[t]ime

and again” the Supreme Court has described filing deadlines like the one set

forth in § 30511(a) as “‘quintessential claim-processing rules,’ which ‘seek

to promote the orderly progress of litigation,’ but do not deprive a court of

authority to hear a case.” Id. (quoting Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 435 (2011)).

Kwai Fun Wong was not the first case in which the Supreme Court

applied a clear statement rule to distinguish jurisdictional procedural rules

from nonjurisdictional ones, but Bonvillian contends that Kwai Fun Wong

bears special importance here because our court’s Eckstein panel drew

significant support for its ruling from a Fifth Circuit case that Kwai Fun Wong

directly abrogated—namely, In re FEMA Trailer Formaldehyde Products

Liability Litigation, in which this court deemed the FTCA’s similar filing

deadline jurisdictional. See 646 F.3d 185, 189 (5th Cir. 2011), abrogated by

Kwai Fun Wong, 575 U.S. 402.

Bonvillian is correct that Kwai Fun Wong is particularly salient here.

As Bonvillian correctly observes, FEMA Trailer was indeed a logical linchpin

of the Eckstein panel’s decision to stick with “this Circuit’s prior conclusion

that the Limitation Act’s six-month filing deadline is a jurisdictional

requirement” in spite of the Supreme Court’s “recent[] conclu[sion] that

many filing deadlines are probably not jurisdictional.” See Eckstein, 672 F.3d

at 315 n.12. With greatest respect to the Eckstein panel, none of the four

citations accompanying FEMA Trailer in Eckstein’s footnote 12—the

footnote containing the Eckstein panel’s citations and rationale for the rule in

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question—are of comparable value in supporting the rule the Eckstein panel

chose to reassert. 4 It is thus correct to regard FEMA Trailer as a cornerstone

of the Eckstein rule Bonvillian asks us to overturn in light of new legal

developments.

Those legal developments leave our Circuit today in a quandary: the

Supreme Court’s 2015 decision in Kwai Fun Wong both (1) repeats a clear

statement rule that our Eckstein panel did not apply in stating the rule at issue,

and (2) abrogates the Fifth Circuit decision on which our Eckstein panel did

principally rely in continuing to assume that the Limitation Act’s six-month

filing requirement is jurisdictional in nature. For these reasons, the Eckstein

rule is ripe for revisitation—if the rule of orderliness allows it.

III.

“It is a well-settled Fifth Circuit rule of orderliness that one panel of

our court may not overturn another panel’s decision, absent an intervening

change in the law, such as by a statutory amendment, or the Supreme Court,

or our en banc court.” Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th

Cir. 2008). This rule is strict and rigidly applied. Thus, “for a Supreme Court

decision to change our Circuit’s law, it ‘must be more than merely

illuminating with respect to the case before [the court]’ and must

‘unequivocally’ overrule prior precedent.” Tech. Automation Servs. Corp. v.

4

The three cases immediately following FEMA Trailer in Eckstein footnote 12—

namely, this court’s unpublished decisions in Khan v. Gonzales, 223 F. App’x 417 (5th Cir.

2007) (per curiam), and Anderson v. Parsons State Hospital & Training Center, 180 F. App’x

514 (5th Cir. 2006) (per curiam), and the Supreme Court’s habeas corpus decision in Bowles

v. Russell, 551 U.S. 205 (2007)—are decisions concerning statutory deadlines for appeals

(which are classically, and unquestionably, jurisdictional in nature). A fourth and final

citation—referencing the Supreme Court’s statement in Henderson ex rel. Henderson v.

Shinseki, 562 U.S. 428 (2011) that Bowles “did not hold categorically that every deadline

for seeking judicial review in civil litigation is jurisdictional”—is a catch-all that merely

confirms that the Eckstein rule has not been categorically ruled out.

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Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) (alteration in

original) (quoting Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.

2001)). Whether an intervening Supreme Court decision “merely

illuminates” or “unequivocally overrules” is a judgment call—there is no

hard-and-fast requirement, for instance, that a Supreme Court decision

explicitly overrule the circuit precedent at issue, or specifically address the

precise question of law at issue. Rather, a latter panel must simply determine

that a former panel’s decision has fallen unequivocally out of step with some

intervening change in the law. 5 As we observed in a similar context,

Whether a Supreme Court decision implicitly overrules a prior

Fifth Circuit decision depends on context. That two decisions

involve different statutes is not dispositive. Sometimes a

Supreme Court decision involving one statute implicitly

overrules our precedent involving another statute. Sometimes

it does not. The overriding consideration is the similarity of the

issues decided.

Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302–03 (5th Cir.

2018) (footnote omitted) (citations omitted).

In basic terms, then, a “Fifth Circuit precedent is implicitly overruled

if a subsequent Supreme Court opinion ‘establishes a rule of law inconsistent

with’ that precedent.” Id. at 302 (quoting Gonzalez v. Thaler, 623 F.3d 222,

226 (5th Cir. 2010)). One situation in which this may naturally occur is

“where ‘an intervening Supreme Court decision fundamentally change[s]

the focus’ of the relevant analysis.” Acosta v. Hensel Phelps Constr. Co., 909

5

When this occurs, the latter panel has both “the authority and obligation to declare

and implement [the] change in the law” it perceives. United States v. Tanksley, 848 F.3d

347, 350 (5th Cir. 2017) (emphasis added).

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F.3d 723, 742 (5th Cir. 2018) (alteration in original) (quoting Robinson v.

J & K Admin. Mgmt. Servs., Inc., 817 F.3d 193, 197 (5th Cir. 2016)).

That, we hold, is the circumstance here. The Supreme Court’s

jurisprudence on the jurisdictional significance of statutory procedural rules

“fundamentally changes” the analysis this court must perform in

determining whether § 30511(a)’s six-month filing requirement imposes a

jurisdictional barrier to suit or a mere claim-processing rule. As such,

whereas the Eckstein panel largely assumed—by citation to a prior panel’s

unsupported assumption in Tom-Mac, 6 and by analogy to this court’s since-

abrogated interpretation of the FTCA’s statute of limitations 7—that a

limitation action’s untimeliness deprives a district court of jurisdiction, this

panel has been instructed in Kwai Fun Wong and other intervening cases that

the essential hallmark of a jurisdictional procedural rule is a clear

congressional statement, which is nowhere to be found in the Limitation Act.

Put simply, it is doubtful that the Eckstein panel today would conclude

that the Limitation Act’s six-month filing requirement imposes a

jurisdictional bar to suit. Indeed, as the Eleventh Circuit noted as the first

court of appeals to interpret § 30511(a)’s time bar in the time since Kwai Fun

Wong, there is “‘no clear textual indication’ that § 30511(a)’s six-month time

bar ‘was intended to limit courts’ subject matter jurisdiction’ . . . because, in

short, [§ 30511(a)] does nothing ‘special, beyond setting an exception-free

deadline.’” See Orion Marine Constr., Inc. v. Carroll, 918 F.3d 1323, 1329

6

Because the 1996 Tom-Mac panel provided no citation for its statement that the

claimants challenged the district court’s jurisdiction by asserting that the vessel owner’s

limitation action was untimely, it is unclear where the panel drew that notion from (or its

pedigree in this Circuit, to whatever extent that may be relevant). See Tom-Mac, 76 F.3d at

682.

7

See Eckstein, 672 F.3d at 315 n.12 (citing FEMA Trailer, 646 F.3d at 189).

9

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(11th Cir. 2019) (first quoting Sec’y v. Preston, 873 F.3d 877, 882 (11th Cir.

2017); then quoting Kwai Fun Wong, 575 U.S. at 410).

The Eleventh Circuit is correct. Section 30511(a) “speaks only to a

claim’s timeliness, not to a court’s power.” 8 Cf. Kwai Fun Wong, 575 U.S. at

410. Its mandatory phrasing makes no explicit reference to (much less any

clear statement regarding) jurisdiction. 9 And its location within the United

States Code—“among provisions that describe the standards and

procedures that govern the cause of action . . . and (well) away from those

that allocate jurisdiction,” Orion, 918 F.3d at 1329—further counsels against

“imbu[ing]” its “procedural bar with jurisdictional consequences.” Cf. Kwai

Fun Wong, 575 U.S. at 410.

Consequently, the Eckstein rule clearly runs afoul of Kwai Fun Wong

and its family of Supreme Court cases, and this panel is behooved to adjust

our Circuit’s stance accordingly. See, e.g., Gahagan, 911 F.3d at 302–03

(subsequent panel may depart from prior panel’s decision where intervening

Supreme Court pronouncement requires it to do so); United States v.

Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (subsequent panel has obligation

to declare and implement perceived change in law).

8

In full, § 30511(a) provides as follows: “The owner of a vessel may bring a civil

action in a district court of the United States for limitation of liability under this chapter.

The action must be brought within 6 months after a claimant gives the owner written notice

of the claim.”

9

Several statutory rules featuring far more strenuous language than § 30511(a)’s

relatively tepid time bar have been deemed nonjurisdictional by the Supreme Court.

Indeed, under the strict test announced in Kwai Fun Wong and related cases, “Not even

sweeping proscriptions like ‘no action shall be brought’ and ‘shall be forever barred’ [have

been held to] do the trick.” Orion, 918 F.3d at 1329 (citations omitted) (first quoting Jones

v. Bock, 549 U.S. 199, 220 (2007); then quoting Kwai Fun Wong, 575 U.S. at 416).

10

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The appellees’ counterarguments on this point are unavailing. In

addition to arguments that clearly fail for reasons previously described, the

appellees contend that this court already declined to overturn Eckstein and

RLB Contracting 10 in In re Brown, 766 F. App’x 30 (5th Cir. 2019) (reciting

the Eckstein rule without discussion). But the Brown panel made no mention

of Kwai Fun Wong in its unpublished decision, which severely undermines

the appellees’ position, as “[a]n opinion restating a prior panel’s ruling does

not sub silentio hold that the prior ruling survived an uncited Supreme Court

decision.” Gahagan, 911 F.3d at 302. That’s exactly what happened in Brown:

the parties failed to mention Kwai Fun Wong in their briefs and instead took

for granted this court’s Eckstein rule, however shaky that rule’s legal footing

may have been at the time.

As a result, ours is the first Fifth Circuit panel to squarely address this

question in light of Kwai Fun Wong, which both (1) places our Circuit’s

Eckstein rule in clear tension with binding Supreme Court precedent, and

(2) directly abrogates another Fifth Circuit precedent (FEMA Trailer) which

was a pillar at the core of the Eckstein rule. In short, then, Kwai Fun Wong

indeed effects an intervening change in the law that warrants this panel’s

departure from the rule our court announced in Eckstein.

This panel is obliged to acknowledge the Supreme Court’s implicit

overruling of Eckstein and now holds that the time limitation set forth in 46

U.S.C. § 30511(a) is a mere claim-processing rule which has no bearing on a

district court’s subject matter jurisdiction.

10

Which, importantly, was decided before Kwai Fun Wong.

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IV.

The district court held that “under current Fifth Circuit precedent,

the Court lacks jurisdiction over this limitation action, and it must be

dismissed.” Bonvillian, 502 F. Supp. 3d at 1088. Our decision to overrule that

precedent today renders the district court’s able decision no longer valid.

The judgment of the district court is REVERSED, and the case is

REMANDED for further proceedings consistent with this opinion.

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