United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2007
Charles R. Fulbruge III
Clerk
No. 06-30979
Summary Calendar
MARTIN ROBIN, III,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:04-CV-2230)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Martin Robin, III, challenges the dismissal of his claims
under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671-2680.
In September 2002, Louisiana’s Governor declared a state of
emergency in anticipation of a tropical storm. In response to the
storm’s reaching Louisiana, the Louisiana Department of Wildlife
and Fisheries (LDWF) mobilized a search and rescue operation.
Pursuant to the request of the supervising LDWF Lieutenant, Special
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Agent Stephen Clark of the United States Fish and Wildlife Service
(USFWS) assisted in the operation and contributed the use of a
USFWS air boat. Upon the operation’s conclusion, Special Agent
Clark secured the air boat to his truck in order to return it to
the USFWS office. En route to that office, while driving on a
highway that had been closed to non-emergency personnel, Special
Agent Clark struck Robin with his truck.
Robin filed this action against the United States pursuant to
the FTCA, asserting, inter alia, negligence claims. After
discovery, the district court granted the United States’ motion to
dismiss for lack of subject matter jurisdiction, ruling: Special
Agent Clark was entitled to immunity from suit pursuant to LA. REV.
STAT. § 29:735 (“Neither the state ... nor other agencies, nor,
except in case of willful misconduct, the agents’ employees or
representatives ... engaged in any ... emergency preparedness
activities, while complying with or attempting to comply with this
Chapter ... shall be liable for ... any injury to persons ... as a
result of such activity”.); and, accordingly, the United States was
not liable under the FTCA.
Robin’s motion for new trial was denied. Because the motion
was filed ten days after the entry of judgment dismissing Robin’s
claims, it is properly considered a Federal Rule of Civil Procedure
59(e) motion. See Fletcher v. Apfel, 210 F.3d 510, 511-12 (5th
Cir. 2000).
2
A dismissal for lack of subject matter jurisdiction is
reviewed de novo. E.g., Baros v. Texas Mexican Ry. Co., 400 F.3d
228, 234 (5th Cir. 2005). A Rule 59(e) motion must establish
either a manifest error of law or fact or must present newly
discovered evidence. E.g., Ross v. Marshall, 426 F.3d 745, 763
(5th Cir. 2005), cert. denied, 127 S. Ct. 1125 (2007). Although a
ruling on such a motion is generally reviewed for abuse of
discretion, to the extent the motion seeks solely to reconsider a
judgment on its merits, de novo review is appropriate. See
Fletcher, 210 F.3d at 512.
As he did in his Rule 59(e) motion, Robin contends the
district court erred in determining Special Agent Clark was
entitled to immunity pursuant to LA. REV. STAT. § 29:735 because,
inter alia, there is no evidence establishing that the search and
rescue operation was properly authorized. His contentions,
however, were not raised in opposition to the motion to dismiss.
Accordingly, the district court’s denial of his Rule 59(e) motion
was not erroneous. See Ross, 426 F.3d at 763 (“[Rule 59(e)]
motions cannot be used to raise arguments which could, and should,
have been made before the judgment issued. Moreover, they cannot
be used to argue a case under a new legal theory.” (quoting Simon
v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990))).
Moreover, even assuming arguendo these contentions were
properly before the district court, Robin has waived them on appeal
3
due to his inadequate, conclusory briefing. See FED. R. APP. P.
28(a)(9)(A) (appellant’s brief must contain citation to relevant
legal authorities and parts of the record); Dardar v. Lafourche
Realty Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993) (“Questions
posed for appellate review but inadequately briefed are considered
abandoned.”).
AFFIRMED
4