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)
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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