Lonatro v. United States

Decision Date25 April 2013
Docket NumberNo. 12–30425.,12–30425.
Citation714 F.3d 866
PartiesTerry LONATRO; Nida Lonatro; Craig Berthold; Cindy Berthold; Dante Maraldo; Monique Maraldo; Amy Sins; George Sins; Albert Zuniga; Kathleen Zuniga; Roy Arrigo; Tammy Arrigo, Plaintiffs–Appellees v. UNITED STATES of America, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit


Randall Alan Smith, Smith & Fawer, L.L.C., New Orleans, LA, for PlaintiffsAppellees.

Elizabeth Ann Peterson, William Brandt Lazarus, U.S. Department of Justice, Environment & Natural Resources Division–Appellate Section, Washington, DC, Glenn Kenneth Schreiber, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for DefendantAppellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.


The district court concluded that it had subject matter jurisdiction over this action pursuant the Quiet Title Act, 28 U.S.C. § 2409a (“QTA”). We disagree and reverse.


Plaintiffs own and reside on property in Orleans Parish, Louisiana that is “immediately adjacent to and/or abutting the levee surrounding the 17th Street Canal.” Following Hurricane Katrina, Congress authorized the United States Army Corps of Engineers (“Corps”) to repair and strengthen the levees in southeastern Louisiana.1 The Corps, in cooperation with the Orleans Levee District (Levee District), a unit of the Southeastern Flood Protection Agency–East (Flood Protection Agency), announced plans to prepare an area, including the plaintiffs' properties, for levee improvements by removing fences, trees, and other items from portions of the land that were abutting against or part of the levee. The Levee District, claiming that Louisiana law furnished it with a servitude over the levees and surrounding property, granted the Corps a right-of-entry to perform the removal activities.

Before the removal activities began, the plaintiffs filed a class action suit in Louisiana state court against the Levee District and Flood Protection Agency. They alleged state law claims and sought a temporary restraining order, permanent injunctive relief, and damages for appropriation of their property. Their petition challenged the existence and constitutionality of the purported state-law servitude. On July 6, 2008, the state court denied the plaintiffs' request for a temporary restraining order, and the Corps commenced work on the plaintiffs' land. The plaintiffs and defendants then filed cross motions for summary judgment, disputing whether the Levee District held a legal servitude over the plaintiffs' properties. On June 3, 2009, the state court granted partial summary judgment in favor of the plaintiffs and denied the defendants' motion, finding that Louisiana law did not grant the property rights asserted by the Levee District. On September 14, 2009, the state appellate court reversed and remanded, concluding that the plaintiffs owned their property subject to a valid servitude in favor of the local levee authorities.2 On March 12, 2010, the Louisiana Supreme Court denied the plaintiffs' application for further review.

On January 5, 2011, the landowners initiated a second state court suit against the Levee District and Flood Protection Agency. The landowners had learned that the Levee District had granted the Corps another right-of-entry to perform extensive work on and around their property, including (1) engaging in “deep soil mixing,” a process that uses a giant mixer inserted up to 80 feet into the ground, and (2) building new subsurface and embankment walls. The plaintiffs sought injunctive relief to prevent the defendants from entering onto their property and from conducting the construction activities. On January 14, 2011, the state court concluded that it was bound by the Louisiana Court of Appeal's decision recognizing that the Levee District held a valid servitude over the plaintiffs' property. The state court denied the plaintiffs' motion for injunctive relief, granted the defendants' exception for failure to join the Corps as a necessary party, and granted the plaintiffs leave to file an amended petition to name the Corps as an additional defendant.

On February 10, 2011, the plaintiffs filed an amended petition, joining the Corps as a defendant. In their amended petition, the plaintiffs sought a declaratory judgment that the defendants did not possess a servitude over their property, or alternatively, a declaration that the servitude (1) had been abandoned and extinguished by virtue of non-use or (2) did not permit the types of activities the defendants were performing or planning to perform. In addition, the plaintiffs sought compensation for damage to their property caused by (1) the preparation for improvements and (2) the construction, destruction, and removal activities.

Shortly thereafter, the Corps removed the case to federal district court pursuant to 28 U.S.C. §§ 1442(a), 1442(a)(1), and 1442(b). The Corps then moved to dismiss on multiple grounds.3 On September 27, 2011, the district court granted in part and denied in part the Corps's motion to dismiss. The district court concluded that (1) “neither res judicata nor the ‘law of the case doctrine bars the instant suit”; (2) it “lack[ed] jurisdiction over the federal constitutional (if any) and state constitutional takings claims, trespass claims, and any remaining state law tort claims”; and (3) pursuant to the QTA it had jurisdiction “over the Plaintiffs' claims for a declaration as to property rights vis-a-vis the Corps.” The district court sua sponte certified for interlocutory review its order finding jurisdiction under the QTA.4 The Corps filed a motion for reconsideration on October 25, 2011, which the district court classified as a motion to alter or amend the judgment and denied on December 19, 2011. On February 28, 2012, the district court recertified its orders for interlocutory review. On April 24, 2012, this Court granted the United States' petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) and Fed. R.App. P. 5(b). Because the plaintiffs did not cross-appeal, the only issue before this Court is whether the plaintiffs' action against the Corps falls within the scope of the QTA so as to waive the United States' immunity to suit and authorize federal subject matter jurisdiction.


We review de novo a district court's ruling on a motion to dismiss for lack of subject matter jurisdiction,5 but we “review the district court's jurisdictional findings of fact for clear error.” 6


“The United States, as sovereign, is immune from suit save as it consents to be sued.” 7 Hence, consent to be sued or a waiver of sovereign immunity “is a prerequisite for jurisdiction,” 8 and “the terms of [the United States'] consent to be sued ... define [the] court's jurisdiction to entertain the suit.” 9 The plaintiffs claim that the QTA waives the United States' sovereign immunity from this suit and furnishes a basis for federal subject matter jurisdiction.10 Although it has been clearly established that the QTA waives the sovereign immunity “subject to certain exceptions ... in civil actions to adjudicate title disputes involving real property in which the United States claims an interest,” 11 the Government argues that the federal courts lack subject matter jurisdiction over this action because it falls outside the scope of the QTA's waiver of sovereign immunity.

[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” 12Section 2409a(a), by its plain language, imposes two explicit conditions on the United States' waiver of sovereign immunity—(1) the action must be one “to adjudicate a disputed title to real property” (2) “in which the United States claims an interest.” We do not consider whether the second condition is satisfied here because we conclude that this action is not one “to adjudicate a disputed title to real property” within the meaning of the QTA.

The title dispute underlying this action is not between the plaintiffs and the United States; rather, any liability on the part of the United States depends entirely on an adjudication of the validity of the servitude claimed by the Levee District. We read the QTA as requiring that the title dispute must be between the plaintiff—an adverse claimant—and the United States. That condition is not satisfied here because the dispositive title dispute in this case—the validity of the servitude—is a title dispute between the plaintiffs and a third party, not between the plaintiffs and the United States.

Our reading of the QTA is compelled by the Supreme Court's decision last Term in Federal Aviation Administration v. Cooper.13 In Cooper, the Court explained that the scope of a waiver of sovereign immunity must “be clearly discernable from the statutory text in light of traditional interpretative tools;” if it is not, then a court should “take the interpretation most favorable to the Government.” 14 The issue presented in Cooper was whether the term “actual damages” in the civil remedies provision of the Privacy Act includes compensation for mental and emotional harm. The Government urged that the civil remedies provision did not waive the United States' sovereign immunity with respect to such recovery. The Supreme Court considered the particular context in which the term appears in the Act and prior versions of the bill, both of which suggested that Congress intended the term “actual damages” in the Act to mean “special damages.” The Court thus interpreted “actual damages” as meaning “special damages.” It explained that although “the contrary reading advanced ... by respondent is [not] inconceivable,” it was required to adopt the limited interpretation urged by the Government:

[B]ecause the Privacy Act waives the Federal Government's...

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    ...335 (5th Cir.1999)). A district court's jurisdictional findings of fact, however, are reviewed for clear error. Lonatro v. United States, 714 F.3d 866, 869 (5th Cir.2013). “The burden of establishing personal jurisdiction over a non-resident defendant lies with the plaintiff.” Ainsworth v. ......
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    • United States
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    • September 9, 2013
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