Full Opinion (html_with_citations)

Case: 20-30767     Document: 00516114720        Page: 1     Date Filed: 12/02/2021




           United States Court of Appeals
                for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                     December 2, 2021
                                 No. 20-30767                          Lyle W. Cayce
                                                                            Clerk

   In re: In the Matter of Bonvillian Marine Service,
   Incorporated, As Owner and Operator of the M/V Miss
   April in a Cause of Action for Exoneration from or
   Limitation of Liability
   ______________________________

   Bonvillian Marine Service, Incorporated,

                                                           Plaintiff—Appellant,

                                     versus

   Dana Lebouef Pellegrin; Junior Joseph Pellegrin, Jr.;
   Baywater Drilling, L.L.C.,

                                                          Claimants—Appellees.


                  Appeal from the United States District Court
                     for the Eastern District of Louisiana
                           USDC No. 2:19-CV-14651


   Before Barksdale, Engelhardt, and Oldham, Circuit Judges.
   Kurt D. Engelhardt, Circuit Judge:
         The Limitation of Liability Act of 1851 provides vessel owners like
   Appellant Bonvillian Marine Service a means of limiting their vessel’s tort
   liability to the value of the vessel plus pending freight. See 46 U.S.C.
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                                    No. 20-30767


   §§ 30501–30512. Section 30511(a) of the Act requires vessel owners to “bring
   a civil action in a district court of the United States for limitation of
   liability . . . within 6 months after a claimant gives the owner written notice
   of a claim.”
          After finding Bonvillian’s action untimely under § 30511(a), the
   district court applied our precedent that “a challenge to the timeliness of a
   limitation action is a challenge to subject matter jurisdiction” and dismissed
   the action for lack of subject matter jurisdiction. See In re Bonvillian Marine
   Serv., Inc.,
502 F. Supp. 3d 1078
, 1083–84, 1088 (E.D. La. 2020) (citing In re
   Eckstein Marine Serv. L.L.C.,
672 F.3d 310
, 315–16 (5th Cir. 2012)).
          The district court was not free to overturn the rule we announced in
   Eckstein. Because subsequent Supreme Court decisions have effected an
   intervening change in the law that warrants a change in course, we overturn
   the Eckstein rule today and REVERSE the district court’s adept decision
   accordingly.
                                         I.
          On January 19, 2019, a vessel belonging to Bonvillian allided with the
   M/V MISS SADIE ELIZABETH, a crew boat docked on the Mississippi
   River near Port Sulphur, Louisiana. MISS SADIE ELIZABETH crew
   member and Appellee Junior Joseph Pellegrin, Jr., sustained a variety of
   personal injuries in the allision. On August 23, 2019, Pellegrin sued
   Bonvillian in Louisiana state court. On December 16, 2019, Bonvillian filed a
   verified limitation complaint in the Eastern District of Louisiana. Baywater
   Drilling, LLC, the owner of the MISS SADIE ELIZABETH and Pellegrin’s
   co-Appellee, moved to dismiss Bonvillian’s action for lack of subject matter
   jurisdiction.
          Baywater’s argument for Federal Rule of Civil Procedure 12(b)(1)
   dismissal was straightforward: because Bonvillian filed its limitation action




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                                          No. 20-30767


   more than six months after receiving written notice of a claim with a
   reasonable probability of exceeding the value of its vessel, 1 its action was
   untimely under
46 U.S.C. § 30511
(a) (requiring a limitation action to “be
   brought within 6 months after a claimant gives the [vessel] owner written
   notice of a claim”); and, because Bonvillian’s action was untimely, the
   district court lacked subject matter jurisdiction under the Fifth Circuit rule
   announced in In re Eckstein Marine Service L.L.C., in which a prior panel of
   this court observed that “[t]his circuit, like several other courts, has held that
   a party alleging a limitation petition was not timely filed challenges the
   district court’s subject matter jurisdiction over that petition.”
672 F.3d at 315
   (“While many statutory filing deadlines are not jurisdictional, we have long
   recognized that some are. The Limitation Act’s six-month filing requirement
   is one of these.” (footnote omitted)).
           The district court heard argument on Baywater’s motion to dismiss
   and concluded: (1) that Bonvillian’s action was indeed untimely under
   § 30511(a); (2) that the Fifth Circuit’s Eckstein rule remained controlling
   (despite Bonvillian’s contention that the Supreme Court implicitly overruled
   Eckstein in the 2015 case of United States v. Kwai Fun Wong,
575 U.S. 402
   (2015)); and (3) that, as a result, the court lacked subject matter jurisdiction.
           The district court applied the Eckstein rule correctly in this regard, but
   as explained below, we now overturn that rule.




           1
              The factual grounds for Baywater’s Rule 12(b)(1) motion are hotly contested by
   the parties, but because we remand on pure legal grounds, we refrain from discussing the
   parties’ factual disputes over the agency of Bonvillian’s claims adjuster and the likely value
   of the claims against Bonvillian.




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                                       No. 20-30767


                                             II.
          This case requires us to determine as a threshold matter whether to
   maintain and apply the rule this court announced in Eckstein (as the Appellees
   urge) or to adopt a rule that is better suited to the Supreme Court’s
   intervening pronouncements in Kwai Fun Wong and related cases (as
   Bonvillian urges). Since the central issue is the interplay between Eckstein and
   Kwai Fun Wong, we begin with a brief introduction of those cases.
                                             A.
          In Eckstein in 2012, a panel of this court confronted a similar set of
   facts in reviewing a district court’s Rule 12(b)(1) dismissal of a vessel owner’s
   untimely limitation action. See
672 F.3d 310
. In response to the appellant
   vessel owner’s argument that timeliness under the Limitation Act “is not a
   jurisdictional issue,” the Eckstein panel officially categorized “[t]he
   Limitation Act’s six-month filing requirement” as a statutory filing deadline
   that is jurisdictional, as opposed to “many statutory filing deadlines [that] are
   not.”
Id.
 at 315 (citing In re Tom-Mac, Inc.,
76 F.3d 678, 682
 (5th Cir. 1996)
   (“In their motion to dismiss, Claimants asserted that Tom-Mac’s limitation
   of liability action was not timely filed, thus challenging the district court’s
   jurisdiction to hear Tom-Mac’s petition.”)).
          In the nine years since, Eckstein has been cited for this particular rule
   of law in just two Fifth Circuit cases. The lone published 2 decision citing
   Eckstein for the proposition that the Limitation Act’s timeliness requirement
   is jurisdictional is In re RLB Contracting, Inc.,
773 F.3d 596, 601
 (5th Cir.
   2014) (per curiam) (“A party who contends that a limitation action was not


          2
              5th Circuit Rule 47.5 provides that unpublished opinions of this court are
   not precedent except under the limited—and in this scenario, inapplicable—circumstances
   set forth in 5th Circuit Rule 47.5.4.




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                                         No. 20-30767


   timely filed challenges the district court’s subject matter jurisdiction.”). 3
   The second and final Fifth Circuit case citing Eckstein for the rule at issue is
   our unpublished decision in In re Marquette Transportation Co.,
524 F. App’x 989, 991
 (5th Cir. 2013) (per curiam) (“We review de novo the district
   court[’]s ruling on a motion to dismiss for lack of subject matter jurisdiction
   under Fed. R. Civ. P. 12(b)(1), including the determination as to whether the
   limitation action was timely filed.”).
           The district court here correctly found itself bound by the rule we set
   forth in Eckstein and restated in RLB Contracting, but the Supreme Court’s
   intervening decision in Kwai Fun Wong—which postdated both Eckstein and
   RLB Contracting—makes clear that our rule has fallen out of step with the
   Supreme Court’s most recent jurisprudence on the jurisdictional import of
   statutory “procedural rules” like § 30511(a)’s time bar.
                                               B.
           In United States v. Kwai Fun Wong, the Supreme Court deemed time
   limitations in the Federal Tort Claims Act (FTCA) nonjurisdictional and
   reiterated a burgeoning “clear statement” rule for interpreting statutory
   procedural rules in general. As relevant here, the Court observed that given
   the “harsh consequences” of deeming such a rule jurisdictional, “procedural
   rules, including time bars, cabin a court’s power only if Congress has ‘clearly
   state[d]’ as much.”
575 U.S. at 409
 (alteration in original) (quoting Sebelius
   v. Auburn Reg’l Med. Ctr.,
568 U.S. 145, 153
 (2013)); see also
id.
 at 409–10
   (“Absent such a clear statement, courts should treat [a] restriction as
   nonjurisdictional. That does not mean Congress must incant magic words.



           3
            RLB Contracting, in turn, has been cited for the rule at issue just once—in the
   unpublished case of In re Brown,
766 F. App’x 30
, 33 (5th Cir. 2019) (“We treat
   [§ 30511(a)’s] time limit as a jurisdictional requirement subject to our de novo review.”).




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                                      No. 20-30767


   But traditional tools of statutory construction must plainly show that
   Congress imbued a procedural bar with jurisdictional consequences.”
   (cleaned up)). Thus, the Court noted, “even when [a] time limit is important
   (most are) and even when it is framed in mandatory terms (again, most are),”
   it   should—absent     a   clear    statement     by   Congress—be      deemed
   nonjurisdictional. Id. at 410. In keeping with this clear statement rule, “[t]ime
   and again” the Supreme Court has described filing deadlines like the one set
   forth in § 30511(a) as “‘quintessential claim-processing rules,’ which ‘seek
   to promote the orderly progress of litigation,’ but do not deprive a court of
   authority to hear a case.” Id. (quoting Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 435
 (2011)).
          Kwai Fun Wong was not the first case in which the Supreme Court
   applied a clear statement rule to distinguish jurisdictional procedural rules
   from nonjurisdictional ones, but Bonvillian contends that Kwai Fun Wong
   bears special importance here because our court’s Eckstein panel drew
   significant support for its ruling from a Fifth Circuit case that Kwai Fun Wong
   directly abrogated—namely, In re FEMA Trailer Formaldehyde Products
   Liability Litigation, in which this court deemed the FTCA’s similar filing
   deadline jurisdictional. See
646 F.3d 185
, 189 (5th Cir. 2011), abrogated by
   Kwai Fun Wong,
575 U.S. 402
.
          Bonvillian is correct that Kwai Fun Wong is particularly salient here.
   As Bonvillian correctly observes, FEMA Trailer was indeed a logical linchpin
   of the Eckstein panel’s decision to stick with “this Circuit’s prior conclusion
   that the Limitation Act’s six-month filing deadline is a jurisdictional
   requirement” in spite of the Supreme Court’s “recent[] conclu[sion] that
   many filing deadlines are probably not jurisdictional.” See Eckstein,
672 F.3d at 315
 n.12. With greatest respect to the Eckstein panel, none of the four
   citations accompanying FEMA Trailer in Eckstein’s footnote 12—the
   footnote containing the Eckstein panel’s citations and rationale for the rule in



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                                          No. 20-30767


   question—are of comparable value in supporting the rule the Eckstein panel
   chose to reassert. 4 It is thus correct to regard FEMA Trailer as a cornerstone
   of the Eckstein rule Bonvillian asks us to overturn in light of new legal
   developments.
           Those legal developments leave our Circuit today in a quandary: the
   Supreme Court’s 2015 decision in Kwai Fun Wong both (1) repeats a clear
   statement rule that our Eckstein panel did not apply in stating the rule at issue,
   and (2) abrogates the Fifth Circuit decision on which our Eckstein panel did
   principally rely in continuing to assume that the Limitation Act’s six-month
   filing requirement is jurisdictional in nature. For these reasons, the Eckstein
   rule is ripe for revisitation—if the rule of orderliness allows it.
                                               III.
           “It is a well-settled Fifth Circuit rule of orderliness that one panel of
   our court may not overturn another panel’s decision, absent an intervening
   change in the law, such as by a statutory amendment, or the Supreme Court,
   or our en banc court.” Jacobs v. Nat’l Drug Intel. Ctr.,
548 F.3d 375, 378
 (5th
   Cir. 2008). This rule is strict and rigidly applied. Thus, “for a Supreme Court
   decision to change our Circuit’s law, it ‘must be more than merely
   illuminating with respect to the case before [the court]’ and must
   ‘unequivocally’ overrule prior precedent.” Tech. Automation Servs. Corp. v.


           4
              The three cases immediately following FEMA Trailer in Eckstein footnote 12—
   namely, this court’s unpublished decisions in Khan v. Gonzales,
223 F. App’x 417
 (5th Cir.
   2007) (per curiam), and Anderson v. Parsons State Hospital & Training Center,
180 F. App’x 514
 (5th Cir. 2006) (per curiam), and the Supreme Court’s habeas corpus decision in Bowles
   v. Russell,
551 U.S. 205
 (2007)—are decisions concerning statutory deadlines for appeals
   (which are classically, and unquestionably, jurisdictional in nature). A fourth and final
   citation—referencing the Supreme Court’s statement in Henderson ex rel. Henderson v.
   Shinseki,
562 U.S. 428
 (2011) that Bowles “did not hold categorically that every deadline
   for seeking judicial review in civil litigation is jurisdictional”—is a catch-all that merely
   confirms that the Eckstein rule has not been categorically ruled out.




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                                          No. 20-30767


   Liberty Surplus Ins. Corp.,
673 F.3d 399, 405
 (5th Cir. 2012) (alteration in
   original) (quoting Martin v. Medtronic, Inc.,
254 F.3d 573, 577
 (5th Cir.
   2001)). Whether an intervening Supreme Court decision “merely
   illuminates” or “unequivocally overrules” is a judgment call—there is no
   hard-and-fast requirement, for instance, that a Supreme Court decision
   explicitly overrule the circuit precedent at issue, or specifically address the
   precise question of law at issue. Rather, a latter panel must simply determine
   that a former panel’s decision has fallen unequivocally out of step with some
   intervening change in the law. 5 As we observed in a similar context,
           Whether a Supreme Court decision implicitly overrules a prior
           Fifth Circuit decision depends on context. That two decisions
           involve different statutes is not dispositive. Sometimes a
           Supreme Court decision involving one statute implicitly
           overrules our precedent involving another statute. Sometimes
           it does not. The overriding consideration is the similarity of the
           issues decided.
   Gahagan v. U.S. Citizenship & Immigr. Servs.,
911 F.3d 298
, 302–03 (5th Cir.
   2018) (footnote omitted) (citations omitted).
           In basic terms, then, a “Fifth Circuit precedent is implicitly overruled
   if a subsequent Supreme Court opinion ‘establishes a rule of law inconsistent
   with’ that precedent.”
Id.
 at 302 (quoting Gonzalez v. Thaler,
623 F.3d 222, 226
 (5th Cir. 2010)). One situation in which this may naturally occur is
   “where ‘an intervening Supreme Court decision fundamentally change[s]
   the focus’ of the relevant analysis.” Acosta v. Hensel Phelps Constr. Co., 909




           5
            When this occurs, the latter panel has both “the authority and obligation to declare
   and implement [the] change in the law” it perceives. United States v. Tanksley,
848 F.3d 347, 350
 (5th Cir. 2017) (emphasis added).




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                                            No. 20-
30767 F.3d 723
, 742 (5th Cir. 2018) (alteration in original) (quoting Robinson v.
   J & K Admin. Mgmt. Servs., Inc.,
817 F.3d 193, 197
 (5th Cir. 2016)).
           That, we hold, is the circumstance here. The Supreme Court’s
   jurisprudence on the jurisdictional significance of statutory procedural rules
   “fundamentally changes” the analysis this court must perform in
   determining whether § 30511(a)’s six-month filing requirement imposes a
   jurisdictional barrier to suit or a mere claim-processing rule. As such,
   whereas the Eckstein panel largely assumed—by citation to a prior panel’s
   unsupported assumption in Tom-Mac, 6 and by analogy to this court’s since-
   abrogated interpretation of the FTCA’s statute of limitations 7—that a
   limitation action’s untimeliness deprives a district court of jurisdiction, this
   panel has been instructed in Kwai Fun Wong and other intervening cases that
   the essential hallmark of a jurisdictional procedural rule is a clear
   congressional statement, which is nowhere to be found in the Limitation Act.
           Put simply, it is doubtful that the Eckstein panel today would conclude
   that the Limitation Act’s six-month filing requirement imposes a
   jurisdictional bar to suit. Indeed, as the Eleventh Circuit noted as the first
   court of appeals to interpret § 30511(a)’s time bar in the time since Kwai Fun
   Wong, there is “‘no clear textual indication’ that § 30511(a)’s six-month time
   bar ‘was intended to limit courts’ subject matter jurisdiction’ . . . because, in
   short, [§ 30511(a)] does nothing ‘special, beyond setting an exception-free
   deadline.’” See Orion Marine Constr., Inc. v. Carroll,
918 F.3d 1323
, 1329



           6
             Because the 1996 Tom-Mac panel provided no citation for its statement that the
   claimants challenged the district court’s jurisdiction by asserting that the vessel owner’s
   limitation action was untimely, it is unclear where the panel drew that notion from (or its
   pedigree in this Circuit, to whatever extent that may be relevant). See Tom-Mac,
76 F.3d at 682
.
           7
               See Eckstein,
672 F.3d at 315
 n.12 (citing FEMA Trailer, 646 F.3d at 189).




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                                           No. 20-30767


   (11th Cir. 2019) (first quoting Sec’y v. Preston,
873 F.3d 877, 882
 (11th Cir.
   2017); then quoting Kwai Fun Wong,
575 U.S. at 410
).
           The Eleventh Circuit is correct. Section 30511(a) “speaks only to a
   claim’s timeliness, not to a court’s power.” 8 Cf. Kwai Fun Wong,
575 U.S. at 410
. Its mandatory phrasing makes no explicit reference to (much less any
   clear statement regarding) jurisdiction. 9 And its location within the United
   States Code—“among provisions that describe the standards and
   procedures that govern the cause of action . . . and (well) away from those
   that allocate jurisdiction,” Orion, 918 F.3d at 1329—further counsels against
   “imbu[ing]” its “procedural bar with jurisdictional consequences.” Cf. Kwai
   Fun Wong,
575 U.S. at 410
.
           Consequently, the Eckstein rule clearly runs afoul of Kwai Fun Wong
   and its family of Supreme Court cases, and this panel is behooved to adjust
   our Circuit’s stance accordingly. See, e.g., Gahagan, 911 F.3d at 302–03
   (subsequent panel may depart from prior panel’s decision where intervening
   Supreme Court pronouncement requires it to do so); United States v.
   Tanksley,
848 F.3d 347, 350
 (5th Cir. 2017) (subsequent panel has obligation
   to declare and implement perceived change in law).




           8
              In full, § 30511(a) provides as follows: “The owner of a vessel may bring a civil
   action in a district court of the United States for limitation of liability under this chapter.
   The action must be brought within 6 months after a claimant gives the owner written notice
   of the claim.”
           9
             Several statutory rules featuring far more strenuous language than § 30511(a)’s
   relatively tepid time bar have been deemed nonjurisdictional by the Supreme Court.
   Indeed, under the strict test announced in Kwai Fun Wong and related cases, “Not even
   sweeping proscriptions like ‘no action shall be brought’ and ‘shall be forever barred’ [have
   been held to] do the trick.” Orion,
918 F.3d at 1329
 (citations omitted) (first quoting Jones
   v. Bock,
549 U.S. 199, 220
 (2007); then quoting Kwai Fun Wong,
575 U.S. at 416
).




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                                         No. 20-30767


          The appellees’ counterarguments on this point are unavailing. In
   addition to arguments that clearly fail for reasons previously described, the
   appellees contend that this court already declined to overturn Eckstein and
   RLB Contracting 10 in In re Brown,
766 F. App’x 30
 (5th Cir. 2019) (reciting
   the Eckstein rule without discussion). But the Brown panel made no mention
   of Kwai Fun Wong in its unpublished decision, which severely undermines
   the appellees’ position, as “[a]n opinion restating a prior panel’s ruling does
   not sub silentio hold that the prior ruling survived an uncited Supreme Court
   decision.” Gahagan,
911 F.3d at 302
. That’s exactly what happened in Brown:
   the parties failed to mention Kwai Fun Wong in their briefs and instead took
   for granted this court’s Eckstein rule, however shaky that rule’s legal footing
   may have been at the time.
          As a result, ours is the first Fifth Circuit panel to squarely address this
   question in light of Kwai Fun Wong, which both (1) places our Circuit’s
   Eckstein rule in clear tension with binding Supreme Court precedent, and
   (2) directly abrogates another Fifth Circuit precedent (FEMA Trailer) which
   was a pillar at the core of the Eckstein rule. In short, then, Kwai Fun Wong
   indeed effects an intervening change in the law that warrants this panel’s
   departure from the rule our court announced in Eckstein.
          This panel is obliged to acknowledge the Supreme Court’s implicit
   overruling of Eckstein and now holds that the time limitation set forth in
46 U.S.C. § 30511
(a) is a mere claim-processing rule which has no bearing on a
   district court’s subject matter jurisdiction.




          10
               Which, importantly, was decided before Kwai Fun Wong.




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                                    No. 20-30767


                                        IV.
          The district court held that “under current Fifth Circuit precedent,
   the Court lacks jurisdiction over this limitation action, and it must be
   dismissed.” Bonvillian, 502 F. Supp. 3d at 1088. Our decision to overrule that
   precedent today renders the district court’s able decision no longer valid.
          The judgment of the district court is REVERSED, and the case is
   REMANDED for further proceedings consistent with this opinion.




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