Bintz v. Federal Emergency Management Agency et al
Filing
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MEMORANDUM (Order to be docketed as separate entry) re: pltf's appeal of magistrate judge's order 30 denying pltf's motion to supplement administrative record. (See memo for complete details.) Signed by Judge Christopher C. Conner on 2/26/18. (McK,K)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EDWARD E. BINTZ,
Plaintiff
v.
THE FEDERAL EMERGENCY
MANAGEMENT AGENCY, THE
DEPARTMENT OF HOMELAND
SECURITY, and W. CRAIG FUGATE,
Defendants
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CIVIL ACTION NO. 1:16-CV-1024
(Chief Judge Conner)
MEMORANDUM
Plaintiff Edward E. Bintz (“Bintz”) commenced this action against
defendants for judicial review of a final agency action by the Federal Emergency
Management Agency (“FEMA”) pursuant to the National Flood Insurance Act, 42
U.S.C. § 4001 et seq. Bintz appeals an order of the magistrate judge denying his
motion (Doc. 24) to supplement the administrative record and for leave to conduct
discovery.
I.
Factual Background & Procedural History1
FEMA administers the National Flood Insurance Program pursuant to the
National Flood Insurance Act. (Doc. 1 ¶ 20; Doc. 8 ¶ 20). The purpose of the
program is to “enable interested persons to purchase [flood] insurance against loss
resulting from physical damage to or loss of real property or personal property.” 42
U.S.C. § 4011(a). To achieve this goal, FEMA adopts flood insurance studies and
1
The above narrative derives from Bintz’s complaint (Doc. 1) and defendants’
answer (Doc. 8).
flood insurance rate maps to assess and to delineate flood risk within a given
community. See 42 U.S.C. §§ 4012, 4102; (Doc. 1 ¶ 21; Doc. 8 ¶ 21). A flood
insurance rate map establishes the base flood elevation—a computed elevation to
which floodwater is expected to rise during the base flood2—for properties in areas
susceptible to flooding. (Doc. 1 ¶ 21; Doc. 8 ¶ 21). Coastal base flood elevations are
assigned according to “transects” which are cross sections of a beach that run
perpendicular to the shoreline. (Doc. 1 ¶ 21; Doc. 8 ¶ 21). Together, base flood
elevations and flood insurance rate maps are used to set premiums for federal flood
insurance policies. (Doc. 1 ¶ 22; Doc. 8 ¶ 22).
Bintz’s Ocean Drive property is located in transect 1610 in South Bethany,
Delaware. (Doc. 1 ¶ 22; Doc. 8 ¶ 22). FEMA issued a preliminary flood insurance
rate map in December 2013 (“2013 Preliminary Map”) which reduced the base flood
elevation for South Bethany properties, including transect 1610, from 12 feet to 10
feet. (Doc. 1 ¶ 47). In April 2014, George Junkin (“Junkin”), a South Bethany town
councilman, sent an email to FEMA stating, inter alia, that the base flood elevation
for Ocean Drive properties should remain at 12 feet. (Id. ¶ 50; Doc. 8 ¶ 50). In
response to Junkin’s letter, FEMA revised the 2013 Preliminary Map to increase the
base flood elevation from 10 feet to 13 feet for properties on Ocean Drive. (Doc. 1
¶ 52; Doc. 8 ¶ 52). The revised 2013 Preliminary Map became final on September 16,
2014 (“2014 Map”). (Doc. 1 ¶ 54).
2
The base flood is “a flood having a one percent chance of being equalled or
exceeded in any given year.” 44 C.F.R. § 59.1.
2
The town of South Bethany and residents thereof lodged objections to the
2014 Map.3 (Id. ¶ 55). FEMA rescinded the South Bethany portion of the 2014 Map
on or about February 25, 2015 and the base flood elevation for properties on Ocean
Drive remained at 2005 levels—12 feet. (Id.; Doc. 8 ¶ 55). Bintz submitted a
Freedom of Information Act (“FOIA”) request on March 29, 2015 seeking
information regarding changes in FEMA’s erosion analysis which led to the base
flood elevation increase from 10 to 13 feet in the 2014 Map. (Doc. 1 ¶ 63; Doc. 8 ¶ 63).
FEMA purportedly provided a partial response to Bintz’s FOIA request on March
29, 2016. (Doc. 1 ¶ 63). FEMA proposed a new preliminary map on May 18, 2015
(“2015 Preliminary Map”) which reassigned a 13-foot base flood elevation to Ocean
Drive properties in South Bethany. (Id. ¶ 56; Doc. 8 ¶ 56). FEMA hosted an open
house presentation for South Bethany residents on June 12, 2015 to explain the
2015 Preliminary Map. (Doc. 1 ¶ 57). Bintz and South Bethany appealed the base
flood elevation determination in the 2015 Preliminary Map in January 2016. (Id.
¶¶ 63-65, 68-69; Doc. 8 ¶¶ 68-69). FEMA denied both appeals on April 6, 2016.
(Doc. 1 ¶ 70; Doc. 8 ¶ 70).
FEMA project engineer Robert Pierson (“Pierson”) agreed to discuss with
Bintz the reasons for FEMA’s denial of his appeal. (Doc. 1 ¶ 64; Doc. 8 ¶ 64). During
an April 22, 2016 telephone call, Pierson responded to some of Bintz’s inquiries and
ostensibly agreed to respond to additional questions by email. (Doc. 1 ¶ 65). Bintz
3
The South Bethany mayor advised FEMA by letter dated December 15, 2014
that averments in Junkin’s email were made by Junkin in his individual capacity
and not as a representative of the town. (Doc. 1 ¶ 53; Doc. 8 ¶ 53).
3
submitted questions to Pierson by email on April 28, 2016 and, upon Pierson’s
request, by letter on May 2, 2016. (Id. ¶ 66; Doc. 8 ¶ 66; Doc. 25-6). Bintz avers that
FEMA never responded to these subsequent inquiries. (Doc. 1 ¶ 67). FEMA also
received a supplemental submission from Bintz in May 2016 following the denial of
his appeal. (Id. ¶ 71; Doc. 8 ¶ 71). FEMA reaffirmed its denial of Bintz’s appeal on
August 5, 2016. (Doc. 1 ¶ 72; Doc. 8 ¶ 72). The 2015 Preliminary Map became final
on September 7, 2016 (“2016 Map”). (Doc. 1 ¶ 8; Doc. 8 ¶ 8).
Bintz commenced the instant appeal on November 4, 2016 pursuant to 42
U.S.C. § 4104(g) and 44 C.F.R. § 67.12(a). (Doc. 1). Bintz seeks reversal of FEMA’s
denial of his appeal, implementation of the 10-foot base flood elevation established
in the 2013 Preliminary Map for transect 1610, and a temporary stay of FEMA’s
implementation of the 2016 Map during the pendency of this action. (Id. at 32).
Defendants filed an answer on January 24, 2017. (Doc. 8). FEMA compiled and
submitted an administrative record comprised of documents relied upon in
determining base flood elevation for South Bethany’s coastline. (Doc. 11).
Following discussions between the parties about the completeness of the
administrative record, FEMA supplemented the record on May 10, 2017. (Docs. 15,
17-23).
On June 5, 2017, Bintz filed a motion to supplement the record and for leave
to conduct discovery. (Doc. 24). Bintz sought:
Supplementation of the administrative record to include two photographs
and a map submitted to FEMA identifying street locations and flood
insurance rate map transects on Ocean Drive. (Doc. 25 at 19-20 ¶ 1).
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Supplementation of the administrative record to include Bintz’s appeal of
FEMA’s FOIA response and letters from the Office of Administrative Law
Judges in response thereto. (Id. at 20 ¶ 2).
Discovery of information and documents responsive to questions posed to
FEMA in Bintz’s May 2, 2016 letter. (Id. at 20 ¶ 3).
Discovery of information and documents that reflect the “extra
replenishment” the neighboring town of Bethany Beach received which
was purportedly unnecessary and not provided to South Bethany. (Id.)
Discovery of information and documents that (1) reflect whether or not
Compass PTS JV (“Compass”) was an independent evaluator of FEMA’s
base flood elevation determinations and (2) provide factual context
surrounding FEMA’s obtaining of the “Compass Memorandum.” (Id.)
Discovery of documents responsive to Bintz’s FOIA request which FEMA
purportedly withheld. (Id. at 20 ¶ 4).
The court referred Bint’z motion to Chief Magistrate Judge Mary Pat Thynge for
resolution on August 29, 2017. (Doc. 29). Judge Thynge issued a memorandum
order denying Bintz’s motion in toto. (See Doc. 30). Bintz appealed Judge Thynge’s
order on November 2, 2017. (Doc. 31). The appeal is fully briefed and ripe for
disposition.
II.
Legal Standard
A district court may refer a nondispositive motion to a magistrate judge “to
hear and determine.” 28 U.S.C. § 636(b)(1)(A). Following timely objection by either
party, the court must “modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
Findings of fact are reviewed for clear error and matters of law de novo. Equal
Employment Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 99 (3d Cir.
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2017) (citing Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992)). Any
objection to the magistrate judge’s order not timely raised is waived. Id.
III.
Discussion
The court may “hold unlawful and set aside agency action, findings, and
conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). In making this determination,
the court is limited in its review to the full record before the agency at the time of its
decision or those parts of it cited by a party. Id. § 706; see also Tinicum Twp., Pa. v.
U.S. Dep’t of Transp., 685 F.3d 288, 294 (3d Cir. 2012) (citing C.K. v. N.J. Dep’t of
Health & Human Servs., 92 F.3d 171, 182 (3d Cir. 1996)). If an agency certifies that
the administrative record is full and complete, the court “assumes that the agency
properly designated the Administrative Record absent clear evidence to the
contrary.” Citizens Advisory Comm. on Private Prisons v. Fed. Bureau of Prisons,
197 F. Supp. 2d 226, 240 (W.D. Pa. 2001) (citations omitted).
A.
Supplementation of the Administrative Record
There is a strong presumption against supplementing the administrative
record in an action governed by the Administrative Procedures Act, 5 U.S.C. § 551
et seq. NVE, Inc. v. Dep’t of Health & Human Servs., 436 F.3d 182, 189 (3d Cir.
2006); see also Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of Health & Human
Servs., 730 F.3d 291, 305 (3d Cir. 2013). A court’s review of agency action must be
based on the existing administrative record, not “some new record made initially in
the reviewing court” or “post-hoc rationalizations” by the agency in question.
Christ the King Manor, 730 F.3d at 305 (quoting Rite Aid of Pa., Inc. v. Houstoun,
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171 F.3d 842, 851 (3d Cir. 1999)). We may look beyond the administrative record
only “when the action is adjudicatory in nature and the agency factfinding
procedures are inadequate,” or “when issues that were not before the agency are
raised in a proceeding to enforce nonadjudicatory agency action.” NVE, 436 F.3d at
189 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971)).
Neither circumstance exists sub judice. Bintz challenges agency rulemaking,
not adjudicative action, see 42 U.S.C. § 4101b(d), and FEMA considered the
substantive issues raised in the instant matter during the administrative
proceedings. Hence, the photographs and map (Doc. 25-8), Bintz’s appeal of
FEMA’s FOIA response (Doc. 25-2), and the correspondence from the Office of
Administrative Law Judges (Docs. 25-3, 25-4) are impermissible supplements to the
administrative record.
B.
Additional Discovery
Discovery into administrative proceedings is strongly disfavored so as to
preserve the integrity and independence of the administrative process. NVE, 436
F.3d at 195. Parties may not attempt to “probe the thought and decision making
process of judges and administrators” through additional discovery on appeal. Id.
(quoting Grant v. Shalala, 989 F.2d 1332, 1344 (3d Cir. 1993)). The Third Circuit
recognizes an exception to this presumption “only in cases involving alleged bias on
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the part of an agency.”4 Id. (emphasis added) (citing Grant, 989 F.2d at 1344). A
plaintiff must demonstrate that improper bias “permeate[d] an agency’s
decisionmaking.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 513 F. Supp. 2d
190, 201 (M.D. Pa. 2007). Bintz seeks discovery on four discrete issues. (See Doc. 25
at 20 ¶¶ 3-4). The court will address these issues seriatim.
1.
May 2, 2016 Letter
Bintz first seeks discovery of information and documents responsive to
multiple questions submitted to FEMA in his May 2, 2016 letter. (Id. at 14-15, 20).
He avers that FEMA project engineer Pierson “reneged on [his] agreement” to
answer additional written questions following an April 2016 telephone call. (Doc. 31
at 6). Bintz provides no legal authority for the proposition that FEMA had an
4
Some district courts have interpreted dicta in NVE as creating a second
exception to the prohibition on discovery in appeals governed by the Administrative
Procedures Act. See, e.g., Uddin v. Mayorkas, 862 F. Supp. 2d 391, 400 (E.D. Pa.
2012). Under this purported second exception, a party seeking discovery must show
that the administrative record is so incomplete that it inhibits a reviewing court’s
ability to decide whether an agency’s decision was arbitrary or capricious. Am.
Farm Bureau Fed’n v. U.S. E.P.A., No. 1:11-CV-0067, 2011 WL 6826539, at *10 (M.D.
Pa. Dec. 28, 2011); Am. Bankers Ass’n v. Nat’l Credit Union Admin., 513 F. Supp. 2d
190, 202 (M.D. Pa. 2007); but see State of Delaware Dep’t of Nat. Res. & Envtl.
Control v. U.S. Army Corp of Eng’rs, 722 F. Supp. 2d 535, 546 (D. Del. 2010). A
district court evaluating a request for discovery based on the incompleteness of the
record should consider three factors: “(1) the clarity of agency procedures that
define the scope of an administrative record; (2) an indication that important
documents were missing from the record; and (3) the size of the record.” Am.
Bankers Ass’n, 513 F. Supp. 2d at 202. The magistrate judge evaluated Bintz’s
discovery requests under both the agency bias and record incompleteness
exceptions. (See Doc. 30 at 8). We are not persuaded that the Third Circuit would
sanction a record incompleteness exception to the prohibition on discovery based
upon the above-referenced three-factor test. Hence, we will only review Bintz’s
discovery requests for clear evidence of agency bias in the decisionmaking process.
See State of Dela., 722 F. Supp. 2d at 546; Am. Bankers Ass’n, 513 F. Supp. 2d
at 201.
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obligation to respond to his post-appeal inquires. (See Docs. 25, 31). Pierson’s
decision not to communicate with Bintz as promised following the April 2016
telephone call does not constitute agency bias in the decisionmaking process
sufficient to warrant discovery beyond the scope of the administrative record.
Moreover, this alleged promise occurred after FEMA made its base flood elevation
determination. The magistrate judge did not err in denying Bintz’s request to
conduct discovery for information and documents responsive to his May 2, 2016
letter.
2.
Extra Replenishment for Bethany Beach
The magistrate judge rejected Bintz’s second request for discovery of
information and documents reflecting the differences in beach replenishment
received by South Bethany and the neighboring town of Bethany Beach. (Doc. 30
at 10-11). The United States Army Corps of Engineers completed a beach
nourishment project in 2008 for several Delaware towns including South Bethany
and Bethany Beach. (Doc. 1 ¶ 42; Doc. 8 ¶ 42). Since the 2008 project, in the
aftermath of two severe coastal storms, South Bethany received two maintenance
nourishments and Bethany Beach received three such nourishments. (Doc. 1 ¶ 45).
Bintz contends that the additional replenishment that Bethany Beach received
illustrates that South Bethany does not incur “unique” erosion compared to
neighboring communities with lower base flood elevations. (Doc. 31 at 9-10; see also
Doc. 1 ¶ 86; Doc. 25 at 17-18). Except in limited circumstances, FEMA does not
consider the effects of beach nourishment projects in creating flood insurance rate
maps. (Doc. 27 at 12-13; Doc. 17 at 17).
9
Bintz asserts that FEMA failed to supplement the administrative record with
information and documents reflecting Bethany Beach’s extra replenishment after
agreeing to do so in an April 14, 2017 letter. (Doc. 25 at 18). He further avers that
the documents FEMA added were nonresponsive. (Id.) This omission does not
establish bad faith or bias by FEMA. In a July 7, 2017 letter, FEMA clarified that it
initially misunderstood Bintz’s request and supplemented the record with
documents based on their erroneous interpretation. (Doc. 28-3 at 6). Moreover, any
arguments that FEMA failed to consider South Bethany’s dunes and replenished
beach in violation of federal regulations is more appropriately reserved for the
court’s review of FEMA’s final agency action under the arbitrary and capricious
standard. (See Doc. 11-3 at 251-52). We will affirm the magistrate judge’s decision
to deny Bintz’s request for discovery on beach replenishment.
3.
Compass PTS JV
Bintz next requests discovery of information and documents regarding an
independent review of the base flood elevations along Ocean Drive conducted by
Compass PTS JV. (Doc. 25 at 11-12, 20). He raises two concerns with regard to the
Compass review and subsequently issued memorandum. (Id.) First, FEMA
ostensibly withheld the document from Bintz in violation of its FOIA obligations
which deprived Bintz of the opportunity to address the report in his administrative
appeal. (Id. at 11). Second, Bintz challenges Compass’s “independence” and in
support of this position points to the five-year, multimillion dollar contract FEMA
awarded Compass in 2014 and a mailing address discrepancy on the Compass
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memorandum.5 (Id. at 11-12). These allegations do not support a finding of agency
bias.
The Compass memorandum is part of the administrative record. (See Doc.
11-2 at 353-55). The court may consider the memorandum’s substantive content as
pertains to FEMA’s decision to reinstate the 13-foot base flood elevation in the 2015
Preliminary Map when reviewing FEMA’s final agency action. See Christ the King
Manor, 730 F.3d at 305. Bintz’s allegation that FEMA improperly withheld the
memorandum when responding to his FOIA request is insufficient to establish
agency bias in the base flood elevation determination process. We are likewise
unpersuaded by Bintz’s unfounded attacks on Compass’s credibility. An expensive,
long-term contract does not render a government contractor incapable of providing
professional, independent work product. Bintz points to no authority or evidence in
support of his assertion that Compass was incapable of conducting an independent
review of FEMA action. (See Docs. 25, 31). The magistrate judge did not err in
denying Bintz’s request for probing discovery regarding the Compass
memorandum.
4.
Documents Responsive to FOIA Request
The magistrate judge denied Bintz’s final request for discovery identifying
documents Bintz believes were responsive to his FOIA request and wrongfully
withheld by FEMA. (Doc. 30 at 6-7; see also Doc. 25 at 20). Bintz submitted a FOIA
request to FEMA on March 29, 2015 seeking documentation associated with
5
The typographical address error on the Compass letterhead is of no
moment.
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FEMA’s 2013 and 2015 Preliminary Maps. (Doc. 1 ¶ 63; Doc. 8 ¶ 63; Doc. 11-5 at 1-3).
FEMA responded on March 29, 2016. (Doc. 1 ¶ 63; Doc. 11-5 at 3-59). Bintz
appealed FEMA’s final response and the Office of Administrative Law Judges
issued a letter indicating that “FEMA did not conduct an adequate search before
sending its final response.” (Doc. 25-3 at 2). The letter stated that FEMA would be
directed to conduct an additional review of Bintz’s file and provide any responsive
documents within thirty days. (Id.) FEMA avers that additional responsive
documents are currently under quality control review. (Doc. 27 at 15 n.12).
FEMA’s incomprehensive initial search for documents responsive to Bintz’s
request may warrant some skepticism with respect to the FOIA matter, but it does
not establish clear bias by the agency’s decisionmakers. Nor does FEMA’s
lackluster FOIA response evince deficiencies in the separate and distinct
administrative record prepared by the agency. Moreover, FEMA is currently
reviewing additional documents responsive to Bintz’s FOIA request in compliance
with the remand order of the Office of Administrative Law Judges. (Id.) FEMA
represents to the court that any documents considered in rendering the base flood
elevation determinations, and that are also pertinent to Bintz’s FOIA request, have
already been included in the administrative record. (Id. at 15). For all of these
reasons, we concur with the magistrate judge’s decision.
C.
Supplementary Allegations of Agency Bias
Bintz raises several additional allegations in support of his argument that
FEMA acted with bias in its determination of base flood elevations for South
Bethany. He first contends that FEMA violated federal regulations by improperly
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treating Junkin’s email as a valid appeal of the initial 2013 Preliminary Map.
(Doc. 25 at 4, 8-10). A party whose property rights may be adversely affected by a
proposed base flood elevation may appeal such determinations by demonstrating
that the proposal is scientifically or technically incorrect through proper supporting
evidence. See 42 U.S.C. § 4104(b); 44 C.F.R. § 67.6. The magistrate judge correctly
noted that Section 67.6 safeguards a right to appeal base flood elevation
determinations but does not purport to limit when FEMA may reevaluate same.
(Doc. 30 at 13); see generally 44 C.F.R. § 67.6. FEMA rescinded the 2014 Map upon
learning that Junkin lacked authority to appeal on South Bethany’s behalf and
following objections by the town of South Bethany and residents thereof. Any
averment that FEMA had no proper legal foundation upon which to reconsider the
base flood elevation determinations undergirding its 2013 and 2015 Preliminary
Maps is best addressed during our evaluation of FEMA’s final agency action.
In further support of this claim of agency bias, Bintz points to an email from
an employee of the Delaware Department of Natural Resources and Environmental
Control. (Doc. 25-1 at 2). Therein, the employee speculates that FEMA treated the
Junkin email as an appeal to circumvent the public review period. (Id.; see also
Doc. 25 at 10). Without corroboration, the employee’s conjecture is woefully
insufficient to warrant a finding that FEMA itself acted with bias in its base flood
elevation decisionmaking process.
Bintz lastly asserts that FEMA provided inaccurate, incomplete, and
misleading information at the June 12, 2015 open house in explaining its
methodology for the 13-foot base flood elevation determination. (Doc. 25 at 12-13).
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He also alleges FEMA violated the Biggert-Watters Act, 42 U.S.C. § 4101b, by
“creating dune, dune toe, and dune erosion slope data for transect 1610.” (Doc. 25
at 12-13, 15-16). The magistrate judge noted that these allegations were suggestive
of an arbitrary and capricious decision by FEMA in its base flood elevation
determination but not indicative of bias in that decisionmaking process. We agree.
Bintz’s concerns regarding transect- and elevation-related data are best raised in
conjunction with our review of FEMA’s final agency action.
IV.
Conclusion
The court will affirm Judge Thynge’s order (Doc. 30) of October 19, 2017. An
appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:
February 26, 2018
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