Persyn v. U.S.

• Decision Date: 05 July 1991
• Docket Number: No. 90-5611,90-5611
• Citation: 935 F.2d 69
• Parties: Darson H. PERSYN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees. J.L. GUERRA and Herminia G. Guerra, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 69

935 F.2d 69

20 Fed.R.Serv.3d 769

Darson H. PERSYN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.

J.L. GUERRA and Herminia G. Guerra, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.

No. 90-5611.

United States Court of Appeals Fifth Circuit.

July 5, 1991.

Craig L. Austin, San Antonio, Tex., for plaintiffs-appellants.

Paula Dlugosz, Judith A. Yacono, Asst. City Attys., San Antonio, Tex., for City of San Antonio.

Catherine M. Flanagan, Robert L. Klarquist, Dorothy R. Burakreis, Dept. of Justice, Land & Nat. Resources Div., Washington, D.C., for U.S.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, JERRE S. WILLIAMS, and DAVIS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Landowners in the vicinity of Kelly Air Force Base in San Antonio, Texas, claim that the Air Force effectuated a taking of their property under the Fifth Amendment by generating noise and conducting hazardous activities on the base. The landowners name the City of San Antonio ("City") as an additional defendant, alleging that the City acted under the authority of the United States when it passed ordinances greatly restricting the use of their property and diminishing its market value.

The district court transferred the cause of action against the United States to the United States Claims Court, finding that the Tucker Act, 28 U.S.C. Secs. 1346 and 1491, vested exclusive jurisdiction in that court since the landowners' claims exceeded $10,000. The court then dismissed with prejudice the action against the City under Fed.R.Civ.P. 12(b)(6). The landowners appeal both the transfer of the action and the dismissal of the claims against the City. We find that we have no jurisdiction to review the transfer of the cause of action against the United States to the Claims Court. We also find the appeal of the dismissal of the claims against the City premature. Such an appeal must await the decision of whether the claims against the United States must be remanded to the district court.

Facts

In 1984, the Air Force initiated operations of both its C-5 and C-5A transport aircraft out of Kelly Air Force Base in San Antonio, Texas. In 1986, the Air Force also began B-1 bomber flights from the base. Noise generated from the base increased with the addition of the transport aircraft and bomber operations. The landowners assert that the increased decibel levels and risks associated with the additional overflights diminished the value of property located near the base.

For safety purposes, San Antonio requires clear zones 3000 feet in length and width at the ends of military airport runways located within its jurisdiction. In 1986, the Air Force requested the establishment of two military supplementary overlay zoning districts around Kelly Air Force Base as an additional safety precaution. The City passed Ordinance 62739-A creating these special districts extending beyond the existing 3000 feet clear zones. Zone 1 extended 5000 feet beyond the clear zone and Zone 2 extended 7000 feet beyond Zone 1. San Antonio, Tex., Code, Sec. 35-222 (April 17, 1986). The ordinance imposed restrictions on the use of all land located within the overlay districts. ¹ Two additional ordinances passed during the next year, 64225 and 64961, refined and amended the use restrictions. The ordinances and their ultimate effect on property values near the base are the basis for a portion of the landowners' claims of a taking of their property.

Appellant Darson H. Persyn and the owners of 34 other tracts of land located adjacent to or near the base filed suit against the United States and the City of San Antonio on July 15, 1988. The landowners sought $16,754,352.50 in damages, attorney's fees, and costs for the alleged reduction of the value of their property caused by the overflights and the restrictive ordinances. Appellants J.L. and Herminia Guerra filed an identical suit seeking $2,215,000 in damages on December 6, 1989. The district court consolidated these two cases. The transfer of the claim against the Air Force and the dismissal of the claim against San Antonio followed. Appellants ask us to reverse both rulings, and to remand the case for trial in the district court.

I. Notice of Appeal

We have an independent duty to determine our jurisdiction over any case presented to us for decision. Morales v. Pan American Life Ins. Co., 914 F.2d 83, 85 (5th Cir.1990). To vest jurisdiction in this Court, a party must comply with Fed.R.App.P. 3(a) by filing a timely notice of appeal. Rule 3(c) provides that a notice of appeal "shall specify the party or parties taking the appeal." Under Fed.R.App.P. 4(a)(1) appellants filed their Notice of Appeal ("Notice") on July 12, 1990, within the 60-day time limit for appeals in which the United States is party. The Notice lists J.L. Guerra, Herminia Guerra, and Darson Persyn individually as the parties appealing to this court. It refers to the remaining landowners as "Et Al." We must determine whether we have jurisdiction over an appeal by all of the original plaintiffs or whether our jurisdiction is limited to the parties specifically named in the Notice.

The Supreme Court in Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988) held that the use of "et al." will not suffice to perfect an appeal for unnamed appellants. Under Torres, we lack appellate jurisdiction over parties other than those properly identified in the notice of appeal. Samaad v. City of Dallas, 922 F.2d 216, 219 (5th Cir.1991).

We have recognized an exception to this strict rule. A party may satisfy Rule 3(c) by filing some other paper identifying all of the appellants within the period allowed for appeals under Rule 4(a). Brotherhood of Ry. Carmen v. Atchison, Topeka & Santa Fe Ry. Co., 894 F.2d 1463, 1465 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990). In this case no such additional filing by any party was made. The district court clerk, however, listed all of the original plaintiffs in the docketing statement recognizing receipt of the landowners' notice of appeal. The landowners argue that this docketing statement cures the defect in their Notice under the Brotherhood of Ry. Carmen exception. We disagree.

The landowners refer us to the Tenth Circuit's decision in Hubbert v. City of Moore, Okl., 923 F.2d 769, 772 (10th Cir.1991). In Hubbert, a notice of appeal failed to indicate which parties were appealing the lower court's decision. A docketing statement filed with the notice of appeal, however, listed the specific parties taking the appeal. The Tenth Circuit held that the filing of the docketing statement cured the defect in the notice of appeal.

Although Hubbert superficially supports the landowners' argument, the facts of the two cases are distinguishable. The parties themselves in Hubbert filed the docketing statement listing the intended appellants. Here, the landowners did not file the docketing statement or any other document listing additional parties claimed to be appealing. The clerk of the district court produced the docketing statement and transmitted it to us as a routine matter with the notice of appeal. Our opinion in Brotherhood of Ry. Carmen specifically requires a party to file some other document naming the parties appealing a decision to take advantage of the exception to Rule 3(c). The landowners have not satisfied that requirement. The fortuitous decision of the district court clerk to include all of the original plaintiffs in the docketing statement does not release the landowners from the requirements of Rule 3(c). We must conclude that only Darson H. Persyn, J.L. Guerra, and Herminia G. Guerra are involved in the asserted appeal to this Court.

II. Claims Against the United States

The landowners seek in excess of $18 million in damages under the Fifth Amendment for the alleged taking of their property by military overflights and by the passage of the restrictive ordinances. The United States has waived sovereign immunity for civil actions founded upon the Constitution or an Act of Congress in the Tucker Act, 28 U.S.C. Secs. 1346 and 1491. Both the district court and the Claims Court have jurisdiction to entertain these suits. The jurisdiction of the district court is limited, however, to claims not exceeding $10,000. 28 U.S.C. Sec. 1346(a)(2). ² Congress has vested exclusive jurisdiction over claims in excess of $10,000 in the Claims Court. 28 U.S.C. Sec. 1491(a)(1). ³

Since the landowners' claims exceeded $10,000, the district court held that the Claims Court was the only forum for the action. The district court transferred the complaint to the Claims Court under 28 U.S.C. Sec. 1631. ⁴ The landowners assert that this transfer was improper because other provisions in the Tucker Act deprived the Court of Claims of jurisdiction. We do not consider those claims because we must first decide whether we have jurisdiction to review the district court's transfer order.

The landowners premise jurisdiction for appeal to this Court on 28 U.S.C. Sec. 1291. Section 1291 only authorizes appeals from final decisions of the district court. A transfer order is an interlocutory order, and generally is not appealable. Section 1292(b) permits us to review some interlocutory orders, but only if the district court certifies the question. The landowners made no application for certification in this case, and there is no certification.

Although we have no authority to review this transfer under Sec. 1291 or Sec. 1292, we must consider whether to exercise jurisdiction under the collateral order doctrine. Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); see also Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 11-12, 103 S.Ct. 927, 934-35, 74 L.Ed.2d 765 (1983). In Coh...