In Re Fema Trailer Formaldehyde Products Liability Litigation

Case: 10-30921 Document: 00511733847 Page: 1 Date Filed: 01/23/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 23, 2012

No. 10-30921 Lyle W. Cayce

Clerk

IN RE: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY

LITIGATION (MISSISSIPPI PLAINTIFFS),

Consolidated With

No. 10-30945

IN RE: FEMA TRAILER FORMALDEHYDE PRODUCTS LIABILITY

LITIGATION (ALABAMA PLAINTIFFS),

Appeals from the United States District Court for the Eastern District of

Louisiana MDL No. 07-1873, Section “N”

Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Plaintiffs-Appellants (“Appellants”)1 brought this Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 2671-2680, action against the United States (“the

Government”) for injuries allegedly related to their exposure to elevated levels

of formaldehyde contained in the component materials of the Emergency

1

Except where noted otherwise herein, “Appellants” refers to Mississippi Plaintiffs

(Case No. 10-30921) and Alabama Plaintiffs (Case No. 10-30945) collectively.

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No. 10-30921 Consolidated With 10-30945

Housing Units (“EHUs”) provided to them by the Federal Emergency

Management Agency (“FEMA”) after Hurricanes Katrina and Rita. The district

court dismissed Appellants’ claims for lack of subject matter jurisdiction. We

AFFIRM.

I.

In 2005, Hurricanes Katrina and Rita destroyed the homes of thousands

of residents along the Gulf Coast.2 Over the months and years following the

hurricanes, displaced residents returned to find a shortage of alternative

housing. Pursuant to 42 U.S.C. § 5170, the President of the United States

declared the occurrence a major disaster. In response to the disaster, FEMA was

directed to provide assistance to the disaster victims. 42 U.S.C. § 5174(b)(1).

Shortly thereafter, FEMA activated its Individual and Household

Assistance Program and, from September 2005 through May 1, 2009, the agency

supplied disaster victims with EHUs, at no cost, to use as temporary shelter.

The EHUs were taken from FEMA’s preexisting inventory, which had been

purchased from public retailers as well as manufacturers. The EHUs were

small, portable, and usually placed at the disaster victims’ home sites. The

trailers were installed by Government contractors who placed the units on blocks

or piers, anchored them to the ground using straps or bolts, and connected them

to public sewer and water lines. To obtain use of an EHU, the person seeking

assistance would complete and sign an application acknowledging that he was

requesting an EHU to use as shelter because he was currently unable to live in

his own residence due to the disaster. The EHU applications indicated that the

2

Both Hurricanes Katrina and Rita significantly affected disaster victims residing in

Mississippi, while only Hurricane Katrina significantly affected disaster victims residing in

Alabama.

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No. 10-30921 Consolidated With 10-30945

units were intended for temporary use and that applicants were required to

accept alternative housing options as they became available.

In March 2006, FEMA began receiving complaints from EHU occupants

regarding formaldehyde odors inside of the units and continued receiving

complaints during the following months. Formaldehyde is a chemical substance

commonly found in many construction materials such as plywood, particle board,

home furnishing, fabrics, and other household products. According to the Center

for Disease Control - Agency for Toxic Substances and Disease Registry (CDC-

ATSDR), elevated and high levels of formaldehyde can act as an irritant and

lead to other health problems.

In March 2006, when FEMA began receiving formaldehyde complaints, it

encouraged shelter occupants to ventilate their EHUs by opening the doors and

windows. In June 2006, FEMA prepared an informational brochure informing

EHU occupants of the dangers of formaldehyde exposure, encouraging them to

ventilate their units, and urging them to seek medical help if they developed

health problems related to formaldehyde. The brochures were distributed

between July and September 2006.

In September 2006, FEMA began working with the Environmental

Protection Agency (“EPA”) which tested the EHUs for formaldehyde and

developed mitigation techniques. Over the next year, FEMA received

approximately 200 formaldehyde complaints from EHU occupants. In July 2007,

FEMA distributed another informational brochure to EHU occupants, set up a

hotline and a dedicated call center to field formaldehyde complaints from

occupants, and continued to assist occupants in locating alternative housing.

FEMA subsequently entered into an agreement with the CDC to conduct

additional testing, the findings of which were compiled in a third informational

brochure and distributed to EHU occupants in early 2008. On May 1, 2009, the

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Government officially ended efforts to provide EHUs to disaster victims from

Hurricanes Katrina and Rita.

Appellants are individuals who resided in the EHUs in Mississippi and

Alabama. The Mississippi and Alabama appellants each sued more than 100

entities, including the Government. In October 2007, the United States Judicial

Panel on Multidistrict Litigation (“MDL”) created MDL No. 07-1873 (In re:

FEMA Trailer Formaldehyde Products Liability Litigation)3 and assigned the

litigation to the United States District Court for the Eastern District of

Louisiana. In March 2008, in accordance with the district court’s order,

Appellants filed a consolidated master complaint containing class allegations

and naming as defendants various private manufacturers and contractors as

well as the Government. All actions centralized in the MDL share factual

questions relating to allegations that the EHUs provided by FEMA in response

to Hurricanes Katrina and Rita contained materials which emit dangerous levels

of formaldehyde.

Appellants allege that, for the period of time between March and June

2006, FEMA caused them harm by placing litigation concerns ahead of the

safety of EHU occupants by exposing them to trailers FEMA knew to contain

dangerous levels of formaldehyde, without warning occupants of the dangerous

nature of the units or remedying the dangerous nature of the units.

In support of this contention, Appellants assert that, in spite of being

notified on numerous occasions of complaints by EHU residents regarding

formaldehyde emissions during March through June of 2006, FEMA persisted

in not responding to these concerns. According to Appellants, FEMA’s lack of a

3

MDL No. 07-1873 includes (No. 10-30921) In re: FEMA Trailer Formaldehyde

Products Liability Litigation (Mississippi) and (No. 10-30945) In re: FEMA Trailer

Formaldehyde Products Liability Litigation (Alabama). These two cases have been

consolidated in this appeal.

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No. 10-30921 Consolidated With 10-30945

response was part of a deliberate effort to avoid liability for future formaldehyde

exposure claims and litigation. Appellants further allege that FEMA ignored

and manipulated the concerns of federal scientists in an attempt to avoid

negative publicity and legal liability.

In May 2008, the Government moved to dismiss Appellants’ FTCA claims

for lack of subject-matter jurisdiction, or in the alternative for summary

judgment, based on the FTCA’s discretionary function exception. In October

2008, the district court found that all of the Government’s conduct at issue was

discretionary, but that some of its actions may not have been grounded in social,

economic, or political policy. Therefore, it held that a genuine issue of material

fact remained as to whether, during an identifiable period of time, FEMA’s

response to the issue of formaldehyde in the EHUs was insufficient or delayed

due to self-interest or liability concerns.

In May 2009, the Government filed a second motion to dismiss Appellants’

claims for lack of subject-matter jurisdiction, or in the alternative for summary

judgment, based on the FTCA’s discretionary function exception. In August

2009, the district court denied this motion and reaffirmed that the FTCA’s

discretionary function exception may not apply to some or all of Appellants’

claims, the determination of which would be driven by the facts of each

individual case.

The district court then denied class certification and scheduled a series of

bellwether trials, but none of the FTCA claims brought by the bellwether

plaintiffs against the Government advanced to the trial stage. In October 2009,

Appellants filed a supplemental administrative master complaint for the

purpose of presenting to the district court an updated “procedural vehicle for the

disposition of common issues.”

In November 2009, the Government moved under Rule 12(b)(1) to dismiss

Appellants’ FTCA claims for lack of subject-matter jurisdiction on the grounds

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of no analogous private liability under the Mississippi and Alabama emergency

statutes, Mississippi Emergency Management Law (“MEML”), Miss. Code § 33-

15-21(b) and Alabama Emergency Management Act (“AEMA”), Ala. Code § 31-9-

17. See Fed. R. Civ. P. 12(b)(1); 28 U.S.C. §§ 1346(b)(1), 2674. After concluding

that the aforementioned emergency statutes would bar suit against a “private

person under similar circumstances,” the district court granted the

Government’s motion and dismissed Appellants’ FTCA claims.

In August 2010, the district court entered a final, appealable judgment

under Fed. R. Civ. P. 54(b) dismissing Appellants’ remaining FTCA claims. This

appeal ensued.

II.

A Rule 12(b)(1) motion to dismiss challenges the subject-matter

jurisdiction of the federal court. See Fed. R. Civ. P. 12(b)(1). A district court’s

determination of subject-matter jurisdiction is generally reviewed de novo.

Williams v. Wynne, 533 F.3d 360, 364-65 (5th Cir. 2008). Plaintiffs bear the

burden of establishing subject-matter jurisdiction. Castro v. United States, 560

F.3d 381, 386 (5th Cir. 2009), vacated on other grounds, 608 F.3d 266 (5th Cir.

2010).

Federal courts are courts of limited jurisdiction; without jurisdiction

conferred by statute, they lack the power to adjudicate claims. Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Stockman v. Fed.

Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). Under Rule 12(b)(1), a

claim is “properly dismissed for lack of subject-matter jurisdiction when the

court lacks the statutory or constitutional power to adjudicate” the claim. Home

Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)

(internal citation omitted). The court should consider the Rule 12(b)(1)

jurisdictional attack before addressing any attack on the merits. Ramming v.

United States, 281 F.3d 158, 161 (5th Cir. 2001). Considering Rule 12(b)(1)

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motions first “prevents a court without jurisdiction from prematurely dismissing

a case with prejudice.” Id.

Lack of subject-matter jurisdiction may be found in the complaint alone,

the complaint supplemented by the undisputed facts as evidenced in the record,

or the complaint supplemented by the undisputed facts plus the court’s

resolution of the disputed facts. Ramming, 281 F.3d at 161. A motion to dismiss

for lack of subject-matter jurisdiction should only be granted if it appears certain

that the plaintiff cannot prove any set of facts in support of his claims entitling

him to relief. Wagstaff v. United States Dep’t of Educ., 509 F.3d 661, 663 (5th

Cir. 2007).

A plaintiff may only sue the United States if a federal statute explicitly

provides for a waiver of sovereign immunity. The United States must consent

to be sued, and that consent is a prerequisite to federal jurisdiction. Delta

Commercial Fisheries Ass’n v. Gulf of Mex. Fishery Mgmt. Council, 364 F.3d 269,

273 (5th Cir. 2004). Waivers of sovereign immunity should be narrowly

construed in favor of the United States. In re Supreme Beef Processors, Inc., 468

F.3d 248, 253 (5th Cir. 2006).

The FTCA is recognized as providing a waiver of sovereign immunity and

provides the sole basis of recovery for tort claims against the United States. See

28 U.S.C. § 1346 and § 2671, et seq.; In re Supreme Beef Processors, 468 F.3d at

252 n.4. Section 2674 provides that the United States shall be liable in the same

manner and to the same extent as a private individual under like circumstances.

28 U.S.C. § 2674.

Similarly, section 1346 provides that:

[D]istrict courts . . . shall have exclusive jurisdiction of civil actions on

claims against the United States, for money damages . . . for injury or

loss of property, or personal injury or death caused by the negligent

or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment, under

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circumstances where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place where

the act or omission occurred.

28 U.S.C. § 1346(b)(1).

The “law of the place where the act or omission occurred” refers exclusively

to state law. Brown v. United States, 653 F.2d 196, 201 (5th Cir. 1981). Since

the FTCA requires the Government's liability to be measured in accordance with

the law of the state where the alleged act or omission occurred, Appellants’

FTCA claims are limited by the provisions set forth in Mississippi and Alabama

tort law. See 28 U.S.C. § 1346(b)(1); Richards v. United States, 369 U.S. 1, 11-14

(1962); Cleveland ex rel. Cleveland v. United States, 457 F.3d 397, 403 (5th Cir.

2006).

Mississippi law provides:

(a) Neither the state nor any political subdivision thereof, nor

other agencies, nor, except in cases of willful misconduct,

the agents, employees, or representatives of any of them

engaged in any emergency management activities, while

complying with or attempting to comply with this article or

any rule or regulation promulgated pursuant to the provisions

of this article, shall be liable for the death of or any injury to

persons, or damage to property, as a result of such activity.

The provisions of this section shall not affect the right of any

person to receive benefits to which he would otherwise be

entitled under this article, or under the workmen's

compensation law, or under any pension law, nor the right of

any such person to receive any benefits or compensation under

any act of congress.

(b) Any person owning or controlling real estate or other

premises who voluntarily and without compensation grants a

license or privilege, or otherwise permits the designation or

use of the whole or any part or parts of such real estate or

premises for the purpose of sheltering persons or providing

assistance to persons during or in recovery from an actual,

impending, mock or practice attack or any man-made,

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technological or natural disaster, together with his successors

in interest, if any, shall not be civilly liable for negligently

causing the death of, or injury to, any person on or about such

real estate or premises by virtue of its use for emergency

management purposes, or loss of, or damage to, the property

of such person.

Miss. Code § 33-15-21 (emphasis added).

Similarly, Alabama law provides:

Neither the state nor any political subdivision thereof nor

other agencies of the state or political subdivisions thereof,

nor, except in cases of willful misconduct, gross

negligence or bad faith, any emergency management

worker, individual, partnership, association or corporation

complying with or reasonably attempting to comply with this

chapter or any order, rule or regulation promulgated pursuant

to the provisions of this chapter or pursuant to any ordinance

relating to blackout or other precautionary measures enacted

by any political subdivision of the state, shall be liable for the

death of or injury to persons, or for damage to property, as a

result of any such activity. The provisions of this section shall

not affect the right of any person to receive benefits to which

he would otherwise be entitled under this chapter or under the

Worker's Compensation Law or under any pension law, nor the

right of any such person to receive any benefits or

compensation under any act of Congress.

Ala. Code § 31-9-16(b) (emphasis added).

Any person owning or controlling real estate or other premises

who voluntarily and without compensation grants a license or

privilege, or otherwise permits the designation or use of the

whole or any part or parts of such real estate or premises for

the purpose of sheltering persons during an actual disaster or

an actual, impending, mock or practice attack, shall, together

with his successors in interest, if any, not be civilly liable for

negligently causing the death of, or injury to, any person on or

about such real estate or premises, or for the loss of, or damage

to, the property of such person.

Ala. Code § 31-9-17.

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Whether a private person in “like circumstances” would be subject to

liability is a question of sovereign immunity and, thus, is ultimately a question

of federal law. See United States v. Olson, 546 U.S. 43, 44 (2005). Because the

federal government could never be exactly like a private actor, a court’s job in

applying the standard is to find the most reasonable analogy. LaBarge v. Cnty.

of Mariposa, 798 F.2d 364, 366-69 (9th Cir. 1986). Inherent differences between

the government and a private person cannot be allowed to disrupt this analysis.

Olson, 546 U.S. at 46-47. The Fifth Circuit has consistently held that the

Government is entitled to raise any and all defenses that would potentially be

available to a private citizen or entity under state law. Camacho v. Tex.

Workforce Comm'n, 445 F.3d 407, 410 (5th Cir. 2006); Starnes v. United States,

139 F.3d 540, 542 (5th Cir. 1998); Palmer v. Flaggman, 93 F.3d 196, 199 (5th

Cir. 1996). Therefore, if a private person under “like circumstances” would be

shielded from liability pursuant to a state statute, lower courts must decline to

exercise subject-matter jurisdiction.

Appellants concede that, in accordance with the FTCA, the Government

can only be held liable to the extent that a private individual or a business entity

could be held liable under similar circumstances under the laws where the act

or omission occurred. However, Appellants contend that FEMA’s actions were

non-discretionary, not voluntary, and not without compensation, so the most

reasonable private person analogue would be a temporary housing manager, not

a good Samaritan provider of free shelter.

Appellants argue that FEMA’s provision of the trailers was not voluntary

because the President, under the Stafford Act, is authorized to direct FEMA and

other agencies of the state to provide assistance and services to victims in need

as a result of a natural disaster. See 42 U.S.C. § 5174. Additionally, Appellants

submit that, because the district court previously dismissed their claims

involving the discretionary conduct of the Government (i.e., the selection and

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initial provision of the EHUs), the remaining claims must necessarily involve

non-discretionary conduct. Appellants contend that the Government’s response,

or lack thereof, to formaldehyde concerns, should be considered non-

discretionary conduct. Further, because FEMA receives its budget from the

Government, and the Government provides that budget by collecting taxes,

Appellants argue that the Government’s actions were not without compensation.

Appellants also claim that the statutory phrase “during or in recovery from

an actual disaster,” which provides the time frame for immunized conduct, does

not extend to cover FEMA’s decision-making process in response to post-disaster

reports of dangerous formaldehyde levels in the EHUs.4

Additionally, Mississippi Appellants argue that, because the FTCA is an

“act of congress” under which they are seeking compensation, and because the

emergency statutes purport not to affect the rights of those seeking

“compensation under any act of congress,” the immunity provisions were

erroneously applied to their FTCA claims, interfering with their right to

recovery.5

Accordingly, Appellants contend that the Government’s conduct should not

be immunized under the Mississippi and Alabama emergency statutes,

effectively barring their FTCA claims. See Miss. Code § 33-15-21(b) and Ala.

Code § 31-9-17. Appellants have not cited, nor has our research located, any

controlling or persuasive case law that supports these arguments.

Because the Mississippi and Alabama emergency statutes abrogate the

tort liability of a private person who, (1) voluntarily, (2) without compensation,

(3) allows his property or premises to be used as shelter during or in recovery

from a natural disaster, the Government’s voluntary, cost-free provision of the

4

The language in the Alabama emergency statute is more narrow and provides that

the time frame for the immunized conduct is “during an actual disaster.” Ala. Code § 31-9-17.

5

Alabama Appellants do not submit this argument in their brief.

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EHUs to disaster victims, in connection with Hurricanes Katrina and Rita, is

also immunized conduct under the statute.6 See Miss. Code § 33-15-21(b) and

Ala. Code § 31-9-17. The Government’s provision of the government-owned

EHUs, as implemented by FEMA, was voluntary because it was under no

contractual or legal obligation, under the Stafford Act or other federal

legislation, to provide the EHUs to disaster victims in response to the disasters.

See Ridgley v. FEMA, 512 F.3d 727, 736 (5th Cir. 2008). The Government did

not receive compensation from the disaster victims in exchange for letting them

use the EHUs. The collection of taxes by the Government is not comparable to

the traditional quid pro quo compensation contemplated by the statute. In

addition, the Government’s actions relating to the EHUs fell within the time

frame contemplated by the statute as “during or in recovery from” a major

disaster, since FEMA’s temporary emergency housing program did not end until

May 2009.

We pretermit discussion of the remaining arguments set forth by

Appellants that were not raised before the district court, as it is a bedrock

principle of appellate review that claims raised for the first time on appeal will

not be considered.7 Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctr.,

Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).8

6

Because Appellants failed to properly preserve their argument regarding lack of

immunity for willful misconduct, we do not here need to address the scope of the tort liability

for which immunity is granted.

7

Appellants have not argued for plain error review. In any event, given the admittedly

res nova nature of the questions presented, we conclude that any error could not be “clear” or

“obvious.” Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1124 (5th Cir. 1997).

8

As noted by the district court, Appellants also failed to address the issue that the

“willful misconduct” exclusion set forth in Miss. Code § 33-15-21(a) and Ala. Code § 31-9-16(b)

is not included in Miss. Code § 33-15-21(b) or Ala. Code § 31-9-17. Additionally, Alabama

Plaintiffs failed to address the issue that the language describing the time frame for the

immunized conduct set forth in Ala. Code § 31-9-17 (“during an actual disaster”) is more

narrow than that set forth in the Miss. Code § 33-15-21(b) (“during or in recovery from [a

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Additionally, as an alternative to handling the issue on appeal with this

court, Appellants move to certify the following questions to the Alabama and

Mississippi Supreme Courts: (1) Whether the federal government and its

political subdivisions are considered “persons” under the emergency statutes as

read in conjunction with the entire acts in which they are contained; (2) Whether

the FTCA preempts state law as to the liability vel non of the federal

government when exercising non-discretionary duties; and (3) Whether the

Mississippi and Alabama state legislatures clearly intended to immunize the

federal government under the state emergency statutes. Alabama Appellants

also move to certify the following question to the Alabama Supreme Court: (1)

Whether the actions of FEMA in failing to properly respond to complaints of

formaldehyde exposure, months after Hurricane Katrina, occurred “during an

actual disaster.”

The decision of whether to certify a question lies within this court’s sound

discretion. Patterson v. Mobil Oil Corp., 335 F.3d 476, 487 (5th Cir. 2003) (citing

Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650,

656 (5th Cir. 2002)). The court should exercise that discretion sparingly,

certifying only in “exceptional case[s].” Lavespere v. Niagra Mach. & Tool

Works, Inc., 920 F.2d 259, 262 (5th Cir. 1990). Having considered the foregoing

and upon determining that the questions do not warrant certification, we deny

Appellants’ motions.

III.

For the foregoing reasons, we AFFIRM the district court’s judgment

dismissing Appellants’ FTCA claims against the United States for lack of

subject-matter jurisdiction. Appellants’ motions for certification are DENIED.

natural disaster]”). Accordingly, we pretermit discussion of these issues on appeal as well.

Stewart Glass & Mirror, Inc., 200 F.3d at 316-17.

13