Barrow v. Federal Emergency Management Agency

Filing 22

ORDER denying the Defendant Federal Emergency Management Agency's 15 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge J. Randal Hall on 07/09/2015. (jah)

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IN THE I'NITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAII DIVISTON CRAIG BARROW, III, Dl.int-iff * cv 4t4-25t FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant. ORDER Now before Management subject forth lhe is ("FEMA") Agency's the Court Defendant Federal motion to dismiss (Doc. 15. ) For jurisdiction. matter belovr, Court Emergency for the lack of reasons set DENIES FEMA's motion. r.rypqq Plaintiff hazard brought determination this Statutory Under creates area the is SS 4014(f), create these National- subject 4101(9) . maps. in FEMA's final- the ( A m . C o m p l. , City of Doc. 14, f fl-ood cuyton in 1.) Background and maintains that challenging property for Effingham County, Georgia. A. suit Flood Flood to Insurance Insurance naEurally C.F.R. Act"), Rate Maps ('FIRMS") occurring FEMA determines See 44 ('tthe Act base S f]oods. FEMA of 42 U.S.C. fl-ood elevations 59.1 any (defining to "flood efevation FIRMS determination" to whether determine revise accurately periodical-fy FEMA also ). conditions flood have rlazard re-evaluates chanqed information . and 42 to U. S . C. SS 4101(e) . The provides Act communities and owners/lessees communi ty who adversely impacted believe determinations. the (1) puJclish Federal executive in a officer, prominent U.S.C. (2) newspaper notices other. rd. initiales a 90-day appeaf The s sol-e efevatj-ons is indicating must. ( 4 1 - 0 4b ) . basis that Director hazards "the (1) wj-th respect are designation the to scientifically of an second preliminary requires FEMA efevaEions in community, s chj-ef least at ten (b) . & days newspaper twice of 'Ine each Du-blication Id. of proposed the knowledge an identified identified be eLevation a Act the may f]ood 4104 (a) S elevations or the within appealing possession within base ffood Id. The period. for the affected rights notification pu-blished by Before notify publish be base proposed newspaper. 1oca1 property S 4104. directly (3) and property effective, comment the Register, real proposed and l-egally for appeal their the See 42 for of that by FIRM becomes final to process a being area technically special base and flood information proposed by having special incorrect, or flood hazard the flood (21 the area is or scientifically C.F.R. Act afso S 4104 (g) . the "Any darrs to the the after the Court's B. Riverside 8, in Flood the of City Resp., Doc. Effingham cuyton of its proposed 2013, and subsequently notices, with the second 27, 2013 perj-od, more the than ,, Id. g'overns the in the publication AugusL 19, 2013 triggered (rd. ) F-'+--s u|l rz-1e; City hazard published notj.ce E'TDM F^v (Id. County. flood Register fha oh and (Am. Compl . tl 5.) Federal a appearing Ogeechee River of pl-.,s and determinations on the of of cuyton the public requisite Effingham (Laura A]geo Decl-., Doc. 15, Ex. newspaper ending for SS 701-706, the FEMA not.if ied 3.) May 7 , May 2I , 20L3. not ceorgia. boundaries and Effingham Ex. County Area by County, FEMA published Hazard a7, court determinatiOn. 5 U.S.C. bordered Effingham 20L3, proposed may appeal located slfch U.s.c. determinat.ron district is finaf Id. owns property Drive On April review. final 44 appeal ^f Act, FEMA's Background Factual f any States n^+-i ^6 of appeal . by community Procedure scope of Pl-aintif United ^f re.oihf The Adminj-strative administrative administraLive which within review aggrieved upon determination sixiw an appellant Administrator district judicial alIows resofving deLermination such " S 57.6(a). The of incorrect. technically 2 I Heral"d on 6. ) The May 90-day appeal appeaf Pfaintsiff's proposal directsly the parts of it unlikely is a11ow the would property to spread located (Am. Compl . if tLrose Hazard Ffood Area, Division Protection (Id. there. wastewater in FIRM. FEMA incfuded special treated incl-uded were not Environmental Georgia's Citv the property FEMA'S proposed on that in Guyton's property. Area believes of City on property city Fl-ood Hazard City's the the Pfaintiff's refevant the of wastewater from Plaintiff 11.) tl road Special Zone A then of Parts (Id. the across !T 10.) treated spread to out arose 13. ) -rr n^^^-,aln^l-, -----*-..;1*1'1 appeal to incfuded Special Area on previous expanded based specific locations and stream flow Plaintiff's "Area by of L7, boundary on U.S. and flooding comments of Tnterest" for which the that for the included a he sought ' map to FIRM be in and increase (r d . ) identified a portion private oub, the AcL requires individuals As FEMA points government, local 42 U.s.C. appeals to their but S 4104(c), submitted his appeal directly to FEI4A. ( D o c . L 7 , E x . 4 . ) 4 data historicaf River. that Lwo 32.355650" regarding ogeechee Zone A flooding 32.356586" - Survey his The appeaf F,x. 4.1 -81.480775/Latitude Geological al-so submitted preliminary the observations "Longitude the f requesLing - 8r . 4'79339 / Lat i tude "Longitude published - P]aintif (Doc. and map revisions Hazard Flood 2013, counseL. r FEMA through comments 8, July an of to submit PlainLiff the Hazard Flood Special Area, bv defined a dotted red 1ine. (Doc. L7, Ex. 5.) 23, On JuIy recons j-deration letter of the it satisfied chapter I, Part 57 of during the On September did by Plaintiff flooding l- l-16 a needed any support and asked Plaintiff a\rf ^1.\61 ("Campbe11") , hydrologic appeaf that resolved Title 44, and it was to data submitted 1993 and 1998 the were caused directly ThF of I a1-j-pr the Special- one within and 2013 , 1? retained and cross "84000" provide appeal area Ffood 30 days, unless it crrnl by a i ncd would be Hazard Area noting FEMA such received (Id. ) a\h two the consider studrz. to the The substantively historicaf study in change 6.) an in for (rd.) Decl-. tl 8. ) hydraulic 1-7, Ex. defined " identified (Algeo and hydrologic period. the request Regulations a concfusion two locations to would that support P i rrar Federal- Michael Mayor request the FEMA responded 20L3, stating not the at .}-aa^haa that 24, (Doc. recruirements code of to Plaintiff's considering data the l-etter FIRM. 90-day appeal appeal-, Plaintiff's of "FEMA is because submitted receipt the preliminary that stated a the acknowledging carvin FEMA sent 20L3, by hydraulic sections along "'l'7620.83." Campbell Plaintiff, study based the su-bmitted on Oqeechee (rd. fl e.) 5 consulting CiviI a vegetative River preliminary density identified On November 6, at as 2OL3, a campbefl submitsted hydraulic analysis roughness coefficients,2 along sections version final proposing, the flood new basis hydrologic new of elevations *84000," river: the on its of at *90110.53," and Manning's cross Ehree and "96004.19." ( r d . f l 1 0 .) 2013, December 4, On and county and city Campbell, Campbell's { 11 ) cnnr'lrrsicrnq fTd December 25, 20f3. provided underlying request Division's recommending that based ner.fiFs submit ' and city FEMA had on per noted are the the that 29, the only roughness changes in model's calculations 2or4, Environmental "the 20]-4, FEMA sent Plaintiff, an error of on lTanuary 8, model and county revlsed campbel1's 1O any identifying rerrised the to On February to 12.) model to on campbelJ. Protection changes we're through three (Id. ) seclions. " l-etter f letter a recalcufation cemnhclI (rd. a officials and asked for analysis the FEMA sent dar;q l-o officiafs efevations recafcufated review comments on the the revision its first appeal resolution (1) explaining and Plaintiff at the values reviSed before three and cross 12) nrel iminnrrr it issued sections giving the FTRM its and final is factors Th. Manning's roughness coefficien! one of the used in (Am. Compl. fJ 29.) predlcting flood elevations and Flood Hazard Areas. The Manning's represents the resistance flows in channels coefficient to fload Dense vegetation in a floodplain and floodplains. slows dor,rn and {Id.) (Id- tl 30.) backs up the water so flood elevations are higherTo account for vegetation when calculating flood elevations Hazard Areas, and Flood flood models use a higher Manning's roughness coefficient for more densely (Id- !l 31.) vegetated ffoodplains. (rd. det.erminat ion . cuyton in resu]ted In in (rd. sections. the on April response, 17, sections Ex. 17, sensitive it be roughness doing so, Campbel l of letter analysis ' are error three cross 0.14 any secEion clear in the that FEMA utifize as veqetated as the of three riwer, on (emphasis a portions Manning's either justification (rd. cross for added) . ) Manning's all the feels lCampbe]-fI engineering review." " [g] iven 0.07 at (Doc. model. " the using by experienced. that stated continue al-I also ogeechee River, peer for identified effective also FEMA that roughness sect.ions sections of the studied (Id. ) by them. On by the to in recommended tha! the previously in the presenting vetted coefficient river of history coefficient without of coefficient notified by AMEC,3 is letter irresponsible bank, for 201-4, Campbell ogeechee the Campbell's flood would roughness elevations error Roughness of 7.\ city fl 14 . ) lCampbefll , and now corroborated other the mathematicaL another Manning's flood inaccurate Manning's "t.he of calculation 2or4, on March 17, identifying FEMA a fetter sent Campbell's that 13.) f May to 23, the provided 2OL4, FEMA sent parties explaining by the City of a second that cuyton, appeal resofution FEMA evaluated corrected lhe the Manning's AMEC Enviranment Inc. is an engj-neering consulting & Infrastructure company hired by the City of Guyton to review FEMA/s and Campbell' s proposed (Doc. 17, Ex. ?; Algea Decl. U 14.) flood models. for coefficient and accordingly, (Doc. FIRM. the the that On June 20, Inc., Quigley, (Doc. L7, be river (Doc. a that to 1'7, *54000.00," Engineers higher 7l , studied roug'hnes s where of lhe cross coefficient focated for sections should be which adjusted from 20L4 coefficient of included "66000.00," downstream & FEMA. 1-7 , sections comments *73750.22," - Aprif roughness vegetated f 's and Peoples comments to campbelf's Manning's Plaint.if *50501 .77" - previously appeal 30 days counsel, submilted Echoing sections and this incorporated, through a-l-l similarly Ex. cross additional review and FIRM to for daEa comments within Plaintiff, 9-19. ) applied shoufd hazard your " [p] lease report FIS' flood preliminary the stated, the the to (Id.) consulting recommendation and satisfactorj-Iy 2014, Exs. of flood sul:mit 1etler. " this sections portions Campbel-f model the revisions The letter 8. ) been Please appropriate. cross updaled has resolution date of Ex. f7 , of sections appropriate three preliminary revised verify the made the for elevations cross three the the five "60000.00," of the three the Manning's 0.07 to 0.14. (Doc. 17, Ex. 10. ) on september with determination Special Flood An "FIS" ]-5, 2014, report revised Hazard is FEMA issued FIRMS, including Area, a Flood a fett.er based Insurance Study. upon of final adjustments revised ffood to the Manning's roughness coeffj.cients Plaintiff in (Doc. information scope "did not of to basis. " (Algeo Plaintiff brought determination analyze Dect. action was arbi.lrarv on a cl-ear error in 20f4 and Thus, on that the "was outsj-de the FEMA FIRM on its November r7 , FEMA's f inal- capricious because not' all relevant t.hat and therefore, and revise alleging and fact of study 16. ) f this the FEMA contends appeal" by * 8 4 0 0 0 . 0 0 ," on June 20, administrative Ihis] attempt 18. ) by Plaintiff submitted the Ex. L7, identified staEions * 9 0 1 1 0 . 5 3 ," November 20L3: "77620.A3.', river to the three 20L4, ffood it' hazard was based factors were considered. II. nn --r-i^h F.3d 964, Procedure corrrt dispute. lack of plaintiff subject to (1935); permits show that Sweet L248 n.2 jurisdiction, the invoked. cir. court's Ltd. 2005) to ^.,]ai6^rir utJJ ce the Rul-e of move for crrl.rioat- m.t- i6y burden to u 405 Civil dismissal- On a motion when at the dismiss for remaj-ns on the federaf GMAC, 298 U.S. AP,JMarine, if Ponce Inl-et, Federaf fimited V. ^ r . 1_,L y un t , Town of lhe McNutt v. Pea Marine, (1lth over P. 12(b) (1). matter ^^rryf l 2005) . litigants irtrisdiction FED. R. crv. fedcr: Bochese v. (11t.h Cir. 12 (b) (1) I e.'ks i r r ln exists. 974-75 has been properly 1242, n r n .v ra a d e u e Ir! jurisdiction matter f he --,, MOTION TO DISMISS STA}IDARD jurisdiction 178, 182-83 Inc . , 4II F. 3d Challenges Rule of factual 501 Civil . L244, "require plaintiff has F.2d in original) the "chaffengeIs] such (citat.ion Id. Here, Court to force out.side Act, as subject scope of the factual- attack make findings merits the of of makes a the factual plaintiff's subject hand, are v. lthel matter taken as Dunbar, 9L9 and factual attack jurisdiction matter a omit.ted a matlers affidavits, factual- in outside are facts at.tack attack. jurisdiction of the considered.,, FEMA asserts information appeal- period has not of plaintiff because technical go-day waiver su-bject of of (citation and on and see if Lawrence subject Cnty., . Pl-aint.if f limited look or attack complaint other and FEMA's consideration the his pleadings, matter and therefore, whether of facial faciaf basis 1990) On the the A motion." testimony omitted) triggers to of Defendant l-acks . either Federal Augusta-Richmond to a in Cir. exist.ence irrespective pLeadings, the of merely alleged (11th ]-529 afteration court under be 2007] . allegations of can Gov't Cir. sufficiently and the 1525, fact, the lsl t.he purposes for Consol. (l-1th l25l complaint jurisdiction, v. jurisdiction matter 1"2(b) (1) Procedure McElmurray F.3d true sr.rlcj ect to met the sovereign matter and weigh on cause of to jurisdiction action, " 10 the seeks submitted permitted prerecruisite a Garcia the that court. s power evidence also by r,On a immunity. jurisdiction, the depends implicates v. on the Copenhaver, Bel-l- & Assocs., 1-997). when the the merits is M.D.',s, free weigh of existence 919 F.2d aL 1529). do implicate the the di.strict deaf with merits, is casel.l" Court complied with the procedural his c1aim. presented the to presumptsive and the the jurisdictional williamson, the court (citing related facts to proper that course attack on the v. court to the Lawrence, jurisdiction action for exists of iurisdiction cruestion filing 42 U.S.C. wilf whether has and merits Tucker, been cIaims. " at of of the 645 F.2d S 4014, review established. attaches to material evafualinq Lawrence, 4f2-13) 5 for implicat.es not the and weigh matter the facts over 9L9 F.2d Pfaintiff precl-ude not the at "no allegations, wilf itself of evidence Accordingly, 's only merits jurisdiction plaj-ntiff Again, plaintiff whether deadline subject disputed from 545 F.2d as Id. Cir. implicate trial itseff Williamson t.he Court truthfufness of Chen "the case." find administrative cfaim exis!.ence trial- that determine challenged to do not sat.isfy "[t]he (citing aspect.s of Thus, the (11th t26t 1981)s) . finds the and as a direct Id. 404, 4Ls-1,6 (5th cir. The then objection cIaim, when the But court plaintiff's legal evidence the 1255, F.3d t.o jurisdiction power to hear its the I04 related the plaintiff's of to faccs P.A., merits L529 of (guoting bears the Deci si-ons o f the courl of Appeals for Fifth the Circuit that were prior announced to O c t o b e r 1 , 1 9 8 1 , a r e binding precedenL in the ElevenCh Circuit. Bonner Prichard, 66L F .2d 7206, 1 2 0 9 ( 1 1 t h C i r . 1 9 8 1 ) . 11 burden of FEMA, S factual Inc. v. challenge United jurisdiction that eslablishing to subject III. over this sovereign exhaust to submit first technical analysis Doc. 21, at Reply, The United consent, and agenci-es. (11th sovereign or part as is of a ffood re]evant v. of Ehe waj.ver that. Plaintiff additional 2Ol4, resolve at not river part as 15-1, may not extends United (citing be the of Pfaintiff's L1,-!2; Stat.es, Asociacion 415 F, de Def.fs for Comm'n, 453 Flood imm,rnitv chal-fenges insurance here, 42 claim. U.S.C F.3d the 143, provides Act 42 IJ,S.C. S 4072. provides 1315 1309, Act 145 Area de1 wal-ves FEMA'S disaflowance S 4l-04(g) its government App,x fnsurance First, to without Empleados Panama Canaf nf sued federal to The Naliona] waivero immunity Doc. the because he did five FEMA to Br., immunity 2006)). limited two this 2OI1-) Cir. by government States (ASEDAC) v. Canafera the meet 4.) Rodriguez Cir. (11th (Def.'s trigger remedies ,June in requested appeal . OSI, to FEMA asserts for presented failed woufd adrninistrative information locations, originaf that Specifically, his technical- of jurisdiction matt.er subject Plaintiff deadline immunity. failed face jurisdiction. matter Lacks because f j-ling administrative the ELgli.wN Court the action in 2 8 5 F . 3 d 9 4 7 , 9 5 1 ( 1 L t h C i T . 2 O O 2 l. States, FEMA argues exists of all Second, that "any appellant aggrieved by upon administraEive to Unit.ed the which the receipt States community is of jurisdiction and the 22 F. in her ficensed account her or fand Apr. 29, days lhe lacks subject of v. Adm'r that the court failure materials submitted h,; certifications aff' d sub nom., 2015); Cnty. to No. 14- of Madison, F e d . E m e r g e n c y M g m t . A g e n c y / N o . 1 0 - C V - 9 1 - 9 - J p c - D G W ,2 O l - 1 *3 WL 3290L'77, at (S.D. r11. jurisdiction lacked determination) ,. creat Aug. because Rivers r, 2011) (holding that FEMA never Al-l-iance Habitat issued Fed. v. a ,July 23, 2010) (affirming jurisdiction scientific the because or af f 'd, 2 0 0 9 ' ), technicaf lower the court' 61s s F.3d holding plainE.if fs information, 13 and did what *5 985 (Sth that. it not they the final Emergency Mgmt. Agency, No. 4:08-CV-1982-DDN, 2009 WL 2208483, at Mo. matter Home]and Sec,, plaintiff's the after statutory Mccrory include surveyors ) , (2d Cir. with Dep't as within (emphasis added) . Z01a) (finding not determination sixty Id. the Director the district than " U.S. of did such dismissed. remedies, appeal of the cour! (S.D.N.Y. 288 2559, 20L5 WL I92239I court district administrative engineers v. the on with more comply case must be 3d 279, connection I11. to S 4104, jurisdiction exhaust no! Emergency Mgmt. Agency of Supp. facked located fails of Fed. for court such determination. reguirements of may appeal district plaintiff a determination appeaf, of notice If final any submit did (E.D. Cir. lacked new submit was not certified Miss. v. by an engineer Giuffrida, that. city outside appeafed final r-a^hh decision i ^. 1 Agency, court the No. Ci f V Supp. more Trcnl- days based w - Fed after notice on to review in the a decision absence of jurisdiction granted is on on Emerg'ency Mgmt. Nev. immunity inquiry: Mar, and 15, specific of timely appeal g:rounds sub No. the ngm., Dougfas 3:09-cV-00544-RCJ, arguments ptaintiff in Mccrory, satisfied fifing Ihis] thar . the finaf Homefand Sec., (D. Nev. June jurisdiction appeal untimely conditioning reconsid.eraE.ron Cnty. 2o!L Feo. wL Defendant's collapse or Mqmt FEMA.s statute FEMA), to "Accordingly, 2011) requirements in FEMA's was made to court's administrative the scient.ific s appeal Dep't. of district language exhaustion the agency."5 the deem an Agency, whether regulaE.ory to a other within of Flmercrc.n..\/ notice U.S. Miss. because 1981) (holding city, the Biloxi, (S.D. 3 : 0 9 - C V - O O 5 4 - R C , J - R A M .2 0 1 0 W L 2 5 2 I O 4 2 , a E * 5 4 it of 931 after Mich. because 50 not on (E.D. r7 13, than 2OaO) (holding with Of was City jurisdiction window see DeuSlCE_Jrrl].r l{. ; but 9, (O. appeal jurisdiction ]acked decision) the 927, facked 60-day the surveyor); Supp. court , 545 F. court the and avvar\ F. 608 19e5) (holding or sovereig'n into the 996.755 the statutory administraCive same and appeals 22 F. Supp. 3d at 2g8. 6 The Court notes that the Eleventh Circuit Court of Appeals recently held, in the context of habeas cases, that the requirement of exhaustron as non- j uri sdictional . Santiago-Lugo v- Warden, ?95 F.3d 461, 4.?5 (11th Cir. .^1c\ -v!2t. -Lrr L.udr case, Eoe court. emphasized t4 that ,.Congress knows how to limit Here, is there limeIy administrative notice of no issue 2OI3, triggering the FIRM in 90-day the appeal, submitted on July 8, window. (Doc. Exs. would consider Plaintiff's appeaL [44 C.F.R. that technicaL he engineers. the S 4 1 , 0 4( g ) (Doc. as - l7, Ex. suit that in is, a party within Neither of pursuant his that party it that defined in di.sputes scientific or or that by certified that 90-day confirmed requires, contests 60 days that Plaintiff implicated manner 2013 to administratr-ve requirements S 4104 (b) timely within 's and 5.) properly were neither data appea] 42 U.S.C. submitt.ed Fina11y, instant the administrative errors/ materials .^haal on May 2l-, May 21, Pl-aintiff a public second Herald from was filed submitted the FEMA notified "satisfied S 67]." Plaintiff's 2013, I at-t-6r his period fl 6.) 4-5. ) 14, Plaintiff Effingham appeaf (Algeo Decl. August. L9, 2QL3. whether FEMA published appeal . proposed the as to licensed plaintiff the filed to 42 U.S.C. receipt of FEMA's courts' subject matter jurisdiction The fact that it did not 1irnit jurisdiction courts' subject matter to decide unexhausted S 2241 claj-ms compels the conclusion that any failure of to exhaust lplaintiff] administrat.ive remedies is not jurisdictional ." Id. In many respects, this case is distinguishable from Santiago-Lugo: Congress explicitly limited .'upon jurisdiction courts' subject mat.ter by including phrase Lhe administrative appeal" in of the National S 4104(g) Flood Insurance Act, Indeed, on appeals nas the product " [t] he limitation of mare debate and teslimony than any other portion of the Act when it was being considered in CongressThe decision by Congress to adopt such a limiLed scope of appeal was, therefore, noL a hasty one, nor is it one which may be overlooked by the Court-" City of Biloxi, Mlss., 6OB F. Supp. at 931 (quoting Reardon v. Krimm, 541 F. Supp. 1a'7, 189 (D. Kan. 1982) )The Court nevertheless proceeds wj-th caution, as did the Santiago-Lugo and Douglas courls, tn grafting jurisdictional significance onto a regulation in the absence of unambiguous juri-sdictional terms. 15 finaf jurisdiction wavier of of actually did Section 67.6, of elevations (2) five are cross in errnee l tt r'.'rta f hef { 2Ol4 the retains limitsed submission (Doc. was Submitted months (id. window appeal 5), 'tprovid s base Br. at fLood and regarding the constitutes af ter [e] 12); affect at he specifically informatj-on Interest" ten appeal Ex. to purportedly that of 17, aDpefl-ant' of (1) arguments: Plaintiff's (Def.'s FEMA's" "Area two appellant where sections Plaintiff's on requirements, an from administrative 90-day the L2-13; fl-ood a "new cl-ose Doc. of 15, 1) Neither ignores satisfied has arqument "the provided First, written no authority, appellant identify a]l. l-ocations must with and even representat.ion - daca requirements" an FEMA 1-6, 20L4. 1-',7 20L4 . , nrevail-s. FEMA's conf lictj-ng diclates ' requires June addjtionaJ. court 4014 (g) 's that regulatory different Pl-aintiff's the S requj-rements" l-ocati-ons all elevation the afl meet based representation "data which documentation resuft prior S 67's not under claims a different its C.F.R. facts, immunity. sovereign notwithstanding 44 on these Plaintiff's FEMA urges met t notice. determination whatever the 'tprovide differing Court if the that those Court Plaintiff may be - finds none, documentation f l-ood e]evations FEMA that of" or in the i s s u e d a l e t t e r o f final flood hazard determination on September ( A m . c o m p t . t l ? 1 . ) Plaintiff filed the instant suit on November (Doc. 1.) 1-5 first document he or There are no time l-imits - on the regulation this case, such front-loaded 's Pl-aintiff a in two him required, " to suggest does as a compliant for review specific cross accepted for review ar- yi -f argument f yam l rr receipt of Ex. 6Ji (3) a "new its f l - ia i-t.s contention submitted has not construction within Nor that the ^F is l-1.!a based later, on three with must =F two consistent not 5d6h^r' on even focused 67.6 are be f La interpreted ^^i -F ^f itS appeal . FEMA afso appeal . " i 1ra that (2) 4-6); subsequentfy (4) and conduct haycnadr- Exs. study river; S only information study C.F.R. including or finalized 44 a complete Second, support that construed I7, (Id., of demanding (Doc, Such FEMA's a the The events though hydrologic/hydraulic of 44 FEMA (1) exist: additional sections c.F.R. in data tifl a or a requirement appeaf, coordinates he wou1d be contacted accept.ed not S 67.6 appeals. that of * lhat for process, appeal 44 C,F.R. - FEMA now rel-ies precision sets the anywhere in procedure the tend l-etter map and informed fact, initiate forth set which governs which S 67.8, to she submits has all of it presented Pfaintiff's go-day June presented scientific any any and " As the facts of this case show, FEMA did not Plaintiffts appeal and request support.ing data until the 90-day appeal window closed. authority 2014 submission authority technical administrati-ve l7 legal appeal to data to as support must window. s be No substantively respond t.o well over a month after such l-anguage appears in relevant corresponding a timely appeal, technicaf tend or to it or must "review 44 C. F.R. communj-ty concerning comprehensive 15. ) at is 55.5 (c) S f points Plaintif data contradict proposed determination 930. it then an attempt communit.ies in to time to good faith, f imit.s. "10 of shall "Th lisl " a goal Doug]as Cnt.y. , into account communitv upon any EtlaE which information [the] city from t.he AS be encouraged.") . the conflicts hand in musE only at (p] .,s Bil-oxi, of reasonabfe encourage tshe FEMA recel-ves the t.he appellants. FEMA a bv AcE or 42 tJ.S.C. S 4104(e) ; see al-so S 4104 (e) ; see also within the after informalion eval-uates with S 4104 (e) (emphasis added) . evinces the of fully submitted study Consequently, determination and take ("Submission consul-tation 42 U.S.c. Rather, based. " the out, sections regulations.e scientific negate relevant the Resp. at do8 F. reach time. f inal42 U.S.C. statutory framework FEMA work "not to aided by rigid zOfO WL 2521042, at Supp. with c]early l-ocaf adherence *5. ' plaintiff,s By comparison, if FEMA elected to resolve appeaL via administrative hearing, 44 C.F.R. S 68.8 expressly limits the scope of revie\n, Lo "[a] n examination presenled of any information by each appellant within the 90 day appeal period." t0 This is not to say, however, perpetual that amendment or expansion of permittedappeals is a community "Tf could come forth piecemeal with objections to an [Flood Insurance Study] over an extended perj-od of time, FEMA could never implement a final rate map, and the Congressional policy program would be thwarted. underlying the lFlood Insurance] Indeed, Congress undoubtedly foresaw problem this when it deliberately limited appeals in order to avoid the pitfatl of pet-rnitting those unnecessary delays and seLf_ interested procrast inations wlrich nould make the ffood insurance program unworkable. " City of Brunswick, ca. v. Unitsed St.ates, 849 F.2d 5Ot, 505-06 18 At the scope the surrounds of appeal administrative or irrefevant not so Drocedure when it 's June tso t.rigger compliance decision for which this single this the in aut.hority, the stage, to - comrrl i anc:e to party 44 absence j-s it the did letter so at of word - afmost a Court DENIES FEMA's Motion to Dismiss. step, - Augusta, ceorgia, of actach within of a Federal the persuasive or insistence on exhaustion when Consequently, the of (Doc. l-5.) f-: ORDER EMTERED at to "aII" FEMA's by condition every type the mandatory any on-point as consideration unwilling 67.6 (b) unpersuaded adm.inistrative from is a single S of appropriate. is Court C.F.R. and neither review Court's waiver Act's precisely is his exhausted with exclude submission significance regulation Register to data deem certain the as 201-4 jurisdictional to wefl-supported Plaintiff hlhether elected Pl-aintiff at timely, decision framed, objectively case, FEMA's ammutratv. Simply, FEMA's and remedies sovereacrn Lhis Pl-aintiff's untimelv, administ.ratsive in issue bottom, this 9-' i day of JuIy, 2015. IJNITED FTATES DISTRICT ,JUDGE SOUTHERN DISTRICT OF GEORGIA (1lth Cir. sfip op. at 1988) (citing City of Brunswick v. United st.ates, 10 (s.D. ca. ,Jan. 9, I9e6) (citauion omitted) ). l-9 No. 285 142,

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