Ms Tabea Schiffahrtsgesellschaft Mbh & Co. Kg v. Bd. of Commissioners of The Port of New Orleans, 10–30259Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before JOLLY, GARZA and STEWART, Circuit Judges.
• Citation: 636 F.3d 161
• Parties: MS TABEA SCHIFFAHRTSGESELLSCHAFT MBH & CO. KG, Plaintiff,v.BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, Defendant–Third Party Plaintiff–Appellant,v.United States of America, Defendant–Third Party Defendant–Appellee.
• Docket Number: No. 10–30259Summary Calendar.,10–30259Summary Calendar.
• Decision Date: 18 March 2011

636 F.3d 161

MS TABEA SCHIFFAHRTSGESELLSCHAFT MBH & CO. KG, Plaintiff,
v.
BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS, Defendant–Third Party Plaintiff–Appellant,
v.
United States of America, Defendant–Third Party Defendant–Appellee.

No. 10–30259Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 18, 2011.

[636 F.3d 163]

Joseph P. Tynan, Montgomery Barnett, New Orleans, LA, for Defendant–Third Party Plaintiff–Appellant.Michael Anthony DiLauro, Michelle Terry Delemarre, U.S. Department of Justice, Washington, DC, for U.S.Appeal from the United States District Court for the Eastern District of Louisiana.Before JOLLY, GARZA and STEWART, Circuit Judges.EMILIO M. GARZA, Circuit Judge:

The Board of Commissioners of the Port of New Orleans (“the Dock Board”) appeals from the district court's interlocutory order dismissing the Dock Board's failure to dredge claims against the United States for lack of subject matter jurisdiction. The Dock Board contends that the United States, through the Army Corps of Engineers, had a duty to dredge and properly maintain certain depths in the Mississippi River near the Port of New Orleans, that the Corps' failure to dredge caused the grounding of a containership, and that the United States should be held liable for related damages.

We have previously held that the United States has not waived sovereign immunity for claims, like this one, challenging the Army Corps of Engineers' discretionary judgments concerning when and whether to dredge the nation's navigable waterways. See Canadian Pac. Ltd. v. United States, 534 F.2d 1165, 1171 (5th Cir.1976). The novel question in this appeal is whether the Corps ceded that discretion when it granted the Dock Board a permit to dredge in the Port of New Orleans and the Dock Board completed such dredging at its own expense thereafter. We hold that it did not, and AFFIRM the district court's dismissal order accordingly.

I

This case arises out of the damage sustained by the M/V MSC TURCHIA when it grounded and allided with the Napolean Avenue Wharf in the Port of New Orleans in June 2008. The ship's owner (“Tabea”) and the Dock Board sued the United States, alleging, inter alia, that the Army Corps of Engineers had a statutory duty to dredge and maintain the Mississippi River as a navigable waterway, and that the ship's grounding was caused, in part, by the Corps' failure to do so. In addition to the parties' failure to dredge claims, Tabea also raised a failure to warn claim alleging that the Corps was aware of shoaling in the Napolean Avenue Wharf vicinity but failed to warn mariners of the hazard.

The United States (“the Government”) moved to dismiss all claims for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The Government argued that it did not have a statutory responsibility to dredge the Mississippi River to any particular depth or at any particular time. The Government also argued that because its dredging operations in the nation's waterways are purely discretionary and susceptible to policy analysis, the Army Corps of Engineers' dredging decisions here, as elsewhere, fell within the discretionary function doctrine and, consequently, were not subject

[636 F.3d 164]

to a waiver of sovereign immunity (i.e., the Dock Board's suit against the Government was barred as a matter of law).

In response, the Dock Board argued that § 2232(f) of the Water Resources Development Act (“WRDA”), 33 U.S.C. § 2211 et seq., which was enacted after our decision in Canadian Pacific, imposed a discretionless obligation on the Corps to dredge and maintain the Mississippi River bottom at a depth of –45 feet Mean Low Gulf (MLG). The Dock Board claimed that when it was granted a permit to dredge to a depth of –45 feet MLG in the Napolean Avenue Wharf area and then paid for such dredging, § 2232(f) required the Government to maintain dredging at that depth thereafter. If correct, such a binding obligation would bring this matter outside the discretionary function doctrine and render the United States liable to suit. See 46 U.S.C. § 30903.

The district court found that, notwithstanding the Dock Board's permit, § 2232(f) did not eliminate the Corps' discretion to determine when and how it would conduct dredging operations in the Mississippi River. The court explained that such decisions involved an element of “judgment or choice,” were susceptible to policy analysis, and, thus, fell within the discretionary function doctrine. The court found that the United States had not waived sovereign immunity and dismissed the Dock Board's failure to dredge claims accordingly. The court denied the Government's motion to dismiss with respect to the parties' failure to warn claims and set those issues for trial.

The Dock Board timely appealed.

II

This case requires us to determine whether, in light of the Dock Board's permit and self-financed dredging in the Port of New Orleans, § 2232(f) of the WRDA obligated the Government to maintain dredging at a certain depth in the harbor thereafter. We review questions of statutory construction de novo. See United States v. Quintana–Gomez, 521 F.3d 495, 496 (5th Cir.2008). We also review de novo a district court's order granting the Government's motion to dismiss for lack of subject-matter jurisdiction, applying the same standards as the district court. See Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir.2010).

A

Before we address the district court's subject matter jurisdiction we must first determine our own. See Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1945, 173 L.Ed.2d 868 (2009) (“Subject-matter jurisdiction ... should be considered when fairly in doubt.”). The Dock Board, upon which the burden to demonstrate subject matter jurisdiction lies, see Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001), declares that our power to hear this appeal rests on 28 U.S.C. § 1292(a)(3). The Government disagrees, and claims that the Dock Board's interlocutory appeal is premature and should be dismissed “because the rights and liabilities of none of the parties have been established.” Appellee's Br. at 10. The Government contends that because the district court's February 19, 2010 order, from which the instant appeal is taken, only disposed of the Dock Board's failure to dredge claims and left the parties' failure to warn claims for trial, the rights and liabilities of the parties have not been conclusively determined and, thus, this interlocutory appeal is premature. This argument need not detain us long.

Congress has given the courts of appeals jurisdiction over interlocutory appeals in certain, limited circumstances.

[636 F.3d 165]

See Dardar v. Lafourche Realty Co., 849 F.2d 955, 957 (5th Cir.1988). 28 U.S.C. § 1292(a)(3) provides this court with jurisdiction over “[i]nterlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.” As a general rule, we have permitted appeals under § 1292(a)(3)...