CARL E. STEWART, Circuit Judge:
In 2005, Hurricanes Katrina and Rita destroyed the homes of thousands of residents along the Gulf Coast.
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 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
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 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)
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 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
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 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.
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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (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) motions first "prevents a court without jurisdiction from
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:
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, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Cleveland ex rel. Cleveland v. United States, 457 F.3d 397, 403 (5th Cir.2006).
Mississippi law provides:
Similarly, Alabama law provides:
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, 126 S.Ct. 510, 163 L.Ed.2d 306 (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, 126 S.Ct. 510. 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
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 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.
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.
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 EHUs to disaster victims, in connection with Hurricanes Katrina and Rita, is also immunized conduct
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.
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. Niagara Mach. & Tool Works, Inc.,
For the foregoing reasons, we