Kmart Corporation v. The Kroger Co. et al

Filing 51

MEMORANDUM OPINION re 50 Order on Motion to Dismiss. Signed by Senior Judge Glen H. Davidson on 6/11/12. (rel)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

KMART CORPORATION

PLAINTIFF

v.

CIVIL ACTION NO. 1:11-CV-001!03-GHD-DAS

THE KROGER CO.; E & A SOUTHEAST
LIMITED PARTNERSHIP; FULTON IMPROVEMENTS, LLC;
KANSAS CITY RAILWAY COMPANY; CITY OF CORINTH;
THE UNITED STATES OF AMERICA,
FEDERAL EMERGENCY MANAGEMENT AGENCY

i

DfFENDANTS

MEMORANDUM OPINION GRANTING MOTION TO DISMI~S
Presently before the Court is a motion to dismiss [30] filed by Defendant,lthe United States

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of America, Federal Emergency Management Agency ("FEMA"). The motion to dismiss is filed
pursuant to Rule 12(b)(l), and alternatively, Rule 12(b)(6), of the Federal Rules of Civil
f

Procedure. FEMA argues that this Court lacks subject-matter jurisdiction, as Congress has not
l

waived the United States' sovereign immunity for the claims. Alternatively, FEMA argues that
the complaint fails to set forth a claim upon which relief may be granted.

i Plaintiff Kmart

Corporation ("Kmart") opposes the motion. Upon due consideration, the Court! finds the motion
should be granted pursuant to Rule 12(b)(1).'

A. Factual and Procedural Background
In May of 2010, flash floods hit portions of Arkansas, Kentucky, Tendessee, and north
i

)

Mississippi, resulting in extensive property damage and several fatalities. This tase concerns the

, Because the Court finds it has no subject-matter jurisdiction over the case sub judice~ it need not consider
whether Plaintiff's claims against FEMA survive the Rule 12(b )(6) standard.
'

1

flood damage sustained by a Kmart store located at 118 Highway 72 in Corinth, Mississippi.
,
From the evening of May 1,2010, until the early morning hours of May 2, 201b, rain pelted the
Corinth area, causing a nearby creek to flood. Kmart maintains that the rising water flowed in
;

back of its Corinth store, pressing against the rear doors and finally breakint them open and
;

rushing into the store. Kmart alleges the store was extensively damaged by the Iflooding.
On May 2,2011, PlaintiffKmart Corporation ("Kmart") commenced th~s suit against the
City of Corinth; E & A Southeast Limited Partnership; Fulton Improvements, tiLC; Kansas City
Southern Railway Company; The Kroger Co.; and FEMA. In lieu of answeriI;'g the complaint,
FEMA filed a motion to dismiss [30] pursuant to Rule 12(b)(I), and

alternative~y,

, Rule 12(b)(6),
!

ofthe Federal Rules of Civil Procedure. As the motion solely challenges KmaI1's claims against
FEMA, the Court will limit its analysis to those claims. 2
The Corinth Kmart store and the surrounding area are within the designafud flood limits of
Elam Creek, a large tributary creek that heads up approximately six miles norih of the site and
2

Kmart's claims against the other Defendants are summarized as follows.

,
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First, Kmart alleges the Kroger store that is adjacent to the Corinth Kmart store is inla floodway, and that
the Kroger store's location in the floodway caused a displacement of water, rise in the water levelj and alteration ofthe
water flow from standing water to rushing, forceful water. Kmart alleges that the Kroger ~tore was built in a
flood way that existed at the time of its construction. Kmart alleges the Kroger store should ~e been leveled, but
was instead allowed to remain in the floodway by the issuance of a LOMR by FEMA. Kmart further avers that the
LOMR was secured by the participation of the City of Corinth; The Kroger Co.; and E & ~ Southeast Limited
Partnership, the Kroger store's then-landlord.
.
Second, Kmart alleges that the City ofCorinth contributed to the flood damage by operaJing a landfill for dirt
adjacent to the Kmart store that contributed to water displacement and a heightened water level !in the vicinity of the
Kmart store.
'
Third, Kmart alleges that the Kansas City Southern Railway failed to maintain a railr.,ad underpass in the
vicinity of the Kmart store, and contributed to the flood damage by leaving the underpass clutterdd with debris, which
prevented water flow and displacement.
Finally, Kmart asserts a breach of contract claim against Fulton Improvements, LL¢, the Kmart store's
landlord at the time of the flood damage. Kmart alleges that Fulton Improvements, LLC is rest*>nsible for the flood
damage per the terms of the lease agreement between the Kmart store and Fulton Improvements, LLC. Kmart further
alleges that Fulton Improvements, LLC failed to take protective measures to prevent the flood d.mage.

2

.

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flows south to drain at the site of the Kmart building. Kmart alleges that altijough its Corinth
,
store is located in the floodplain, about one-half of the adjacent Kroger store is!in the floodplain
and floodway. Kmart alleges that Kroger was allowed to construct its store In the regulatory
floodway and was then allowed to remain in the regulatory floodway after FEM+ approved of the
1

action by issuing a Letter of Map Revision ("LOMR") in 2005, thirteen yearsl after the Kroger
store's construction.

The LOMR removed the Kroger store from the 400dway due to

"Inadvertent Inclusion in the Floodway." Kmart maintains that the floodway was drawn correctly
in the initial map and was correct to include halfof the Kroger store in the floodwny. Kmart avers
that Kroger's presence in the floodway both "caused a displacement of water land a rise in the
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water level," and "altered the water flow from standing water to a rushing, forcbful water flow,"
which "resulted in extensive flood damages" to the Kmart store. Pl.'s Compl.

~

47. Kmart

further alleges that the Corinth store closed its doors for flood-related repairs in May of201O, and
,
,
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did not reopen for business until February of2011. On November 1,2010, Kmatt filed a Standard
Fonn 95 with FEMA outlining the flood damages sustained by its Corinth stor~, pursuant to the
"

Federal Tort Claims Act (the "FTCA"). FEMA denied the claim by a letter ;dated January 4,
j

2011, and infonned Kmart of its right to commence suit against FEMA in feder~l district court.
On Apri127, 2011, the Corinth Kmart store experienced another flood e~nt, and alleges it
was forced to incur expenses to prevent further flood damage due to Kroger' s ~ntinued presence
in the floodway. Id.

~

49.

B. FEMA Overview
In analyzing whether FEMA is immune from this suit, it is helpful to ~rovide a general
i

overview ofFEMA itself, and the role FEMA has played in the events giving ri~ to this suit.

3

FEMA provides federal disaster relief assistance to state and local goverriments when state
and local resources are detennined to be insufficient in the wake of a "major 4isaster." See 42
U.S.C. § 5170; 44 C.F.R. §§ 206.3(a), 206.36.
"Major disaster" means any natural catastrophe (including ahY
hurricane, tornado, stonn, high water, winddriven water, tidal wave,
tsunami, earthquake, volcanic eruption, landslide, mudsli4e,
snowstonn, or drought), or, regardless of cause, any fire, flood, or
explosion, in any part of the United States, which in the
detennination of the President causes damage of sufficient sevedty
and magnitude to warrant major disaster assistance under t*s
chapter to supplement the efforts and available resources of Stat~s,
local governments, and disaster relief organizations in alleviating
the damage, loss, hardship, or suffering caused thereby.
;
42 U.S.C. § 5122(2). Pertinent to this case is FEMA's role with respect t~ flood response
activities, and particularly, with respect to FEMA's primary responsibility f<t mapping flood
hazards as part of the National Flood Insurance Program (the "NFIP").
,

In addition to providing flood insurance and reducing flo4>d
damages through floodplain management regulations, the NFJP
identifies and maps the Nation's floodplains. Mapping flo~d
hazards creates broad-based awareness of the flood hazards at.d
provides the data needed for floodplain management programs ~d
to actuarially rate new construction for flood insurance.
FEMA, The NFIP, http://www.fema.gov/about/programs/nfip/index.shtm.
Congress established the NFIP with the enactment of the National Flood!Insurance Act of
1968 (the "NFIA"), 42 U.S.C. § 4001 et seq. Congress found that flood disastets "have required
unforeseen disaster relief measures and have placed an increasing burden Ion the Nation's
i

resources," 42 U.S.C. 4001(a)(1), and that "despite the installation of preventi+e and protective
works and the adoption of other public programs designed to reduce losses lcaused by flood
damaget these methods have not been sufficient to protect adequately against groWing exposure to

4

future flood losses," id. § 400 1(a)(2). Congress further found that "as a niatter of national
!
i

policy, a reasonable method of sharing the risk of flood losses is through a

i

~rogram

of flood

insurance which can complement and encourage preventive and protective tileasures." !d. §
400 1(a)(3).

The NFIA was enacted to "encourage State and local goverhments to make

appropriate land use adjustments to constrict the development of land which is !exposed to flood
damage and minimize damage caused by flood losses," as well as "guide thJ development of
proposed future construction, where practicable, away from locations which ~re threatened by
flood hazards." Id. § 4001(e).
FEMA must publish proposed base flood elevation determinations ("BFBs") in the Federal
Register and twice in a prominent local newspaper, as well as directly notify the ~ommunity. See
42 U.S.c. § 4104. The NFIA allows affected communities and owners or 1esse~ of real property
i

within the community to challenge the results of the flood hazard study if t~ey believe their
property rights may be adversely impacted by the BFEs.

The "sole relief' available to a
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successful appellant is modification of the proposed BFEs. !d. § 41 04(b). The! Flood Insurance
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Rate Map (the "FIRM") becomes effective no later than six months after FEMJA issues its final
BFE determination. See 44 C.F.R. § 67.10.
Subsequently, it may become necessary to make revisions to the maps ~ased on new or
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revised scientific or technical data that shows changes to the floodplain throughlthe issuance of a
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LOMR. The LOMR itself does not authorize, permit, fund, license, zone, or otherwise approve
construction of any projects in the floodplain. FEMA's Reply Supp. Mot. Qismiss [45] at 3;
Norton Decl. [45-1] ,-r 8; Stearrett Decl. [45-1] ,-r 4. With this overview in mind, the Court turns to
the motion to dismiss.

5

C. Rule 12(b)(J) Motion to Dismiss Standard

FEMA's motion to dismiss asserts both a Rule 12(b)(1) and Rule 12(b)46) challenge. A
I

court must address a Rule 12(b)(1) jurisdictional challenge before addressing a: challenge on the
merits, as addressing Rule 12(b)(1) motions first "prevents a court without jurisdiction from
prematurely dismissing a case with prejudice." Ramming v. United States, 281 Il.3d 158, 161 (5th
Cir. 2001).
"Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute,
,
;
they lack the power to adjudicate claims." In re FEMA Trailer Formaldehyde Prods. Dab. Litig.,
f

668 F.3d281, 286 (5thCir. 2012) (citing Kokkonen v. Guardian Life Ins. Co.

0/Am., 511 U.S. 375,

377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Stockman v. Fed. Election Comn;.'n, 138 F.3d 144,
,

151 (5th Cir. 1998». A claim is "properly dismissed for lack of subject-matter jurisdiction when
,

;
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the court lacks the statutory or constitutional power to adjudicate" the claim.! Home Builders
j

Ass'n, Inc. v. City o/Madison, 143 F.3d 1006, 10tO (5th Cir. 1998) (internal

cit~ion

omitted).

"[A] factual attack under Rule 12(b)(1) may occur at any stage of the ~roceedings, and
plaintiff bears the burden of proof that jurisdiction does in fact exist." Arena

Iv. Graybar Elec.
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I

Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit.j, Corp., 613 F.2d
507,511 (5th Cir. 1980) (citations omitted». In such a consideration, the courtlmust
take the well-pled factual allegations of the complaint as true and
view them in the light most favorable to the plaintiff.. " [U]nder
Rule 12(b)(I), the court may find a plausible set of facts by
considering any of the following: (1) the complaint alone; (2) the
complaint supplemented by the undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts p~s
the court's resolution of disputed facts.
!

Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citations and internal! quotation marks

6

omitted). A court should grant the motion only if it seems certain that the plaintiff cannot prove
any set of facts in support ofhis claim that would entitle him to relief. Ramming, 281 F.3d at 161
(citing Home Builders Ass'n, 143 F.3d at 1010).3

D. Sovereign Immunity
Courts may not exercise subject-matter jurisdiction in a suit against flhe United States
unless the United States has waived immunity and consented to suit.

I

See IUnited States v.

Sherwood, 312 U.S. 584, 586-87,61 S. Ct. 767,85 L. Ed. 1058 (1941); United S~tes v. Shaw, 309
I

U.S. 495,501,60 S. Ct. 659, 84 L. Ed. 888 (1940); Bank One Tex. v. Taylor, 97~ F.2d 16,33 (5th
Cir. 1992), cert. denied, 508 U.S. 906, 113 S. Ct. 2331,124 L. Ed. 2d 243 (19~3). A waiver of
sovereign immunity is strictly construed and thus must be unequivocally expre~ed by Congress.

See United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed/. 2d 607 (1980);
Sherwood, 312 U.S. at 590,61 S. Ct. at 771; Interfirst Bank Dallas v. United Staks, 769 F.2d 299,
306 n.10 (5th Cir. 1985), cert. denied, 475 U.S. 1081, 106 S. Ct. 1458,89 L. E4l. 2d 716 (1986).
!

"[N]o suit may be maintained against the United States unless the suit is

~rought

in exact

compliance with the terms of a statute under which the sovereign has conse*ed to be sued."

Lundeen v. Mineta, 291 F.3d 300, 304 (5th Cir. 2002). Plaintiffs must showisuch consent, as
plaintiffs assert federal jurisdiction is proper. See id.

E. Discussion and Analysis
FEMA maintains in its motion to dismiss [30] that the following gromds of immunity
preclude this suit: (1) 33 U.S.C. § 702c ofthe Flood Control Act of 1928 (the "F~A") exempts the
United States from liability for flood damage; (2) no cause of action exists under Che NFIA; and (3)
1

3 The Court need not set forth the applicable Rule 12(b)(6) standard, as the motion to .ismiss was decided
pursuant to Rule 12(b)( 1).

7

no cause of action exists under the FTCA, as no analogous liability exists un4er state law, and
;

flood mapping is a discretionary function insulated from liability. The Court

Will examine each
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of these alleged immunity grounds in turn.

1. 33

u.s.c. § 702c ofthe FCA

First, FEMA contends Plaintiffs claims are barred by 33 U.S.c. § 702c olfthe FCA, which
provides that "[n]o liability of any kind shall attach to or rest upon the Unit¢d States for any
damage from or by floods or flood waters at any place...." 33 U.S.C. § 702c. Section 702
"affirms the government's sovereign immunity in the flood-control context." In Iire Katrina Canal
Breaches Litig., 673 F.3d 381, 387 (5th Cir. 2012). Although the statute's s~eep of sovereign
1

immunity in the flood-control context is broad, it is not all-encompassing. 4 the Fifth Circuit
"recognize[s] immunity for any flood-control activity engaged in by the governtnent, even in the
1

context of a project that was not primarily or substantially related to flood conirol." !d. at 390.
"[T]he terms 'flood' and 'flood waters' apply to all waters contained in or carried!through a federal
flood control project for purposes of or related to flood control, as well as to iwaters that such
projects cannot control." United States v. James, 478 U.S. 597, 605, 106 S. Ct. 3116, 92 L. Ed. 2d
483 (1986).

However, "the government enjoys immunity only from da~ages caused by

floodwaters released on account of flood-control activity or negligence
4

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therei~"

Judge Easterbrook has explained:
The "management of a flood control project" includes building roads to reach the
beaches and hiring staff to run the project. If the Corps of Engineers ShOllid
allow a walrus-sized pothole to swallow tourists' cars on the way to the beach,! or
if a tree-trimmer's car should careen through some picnickers, these injurles
would be "associated with" flood control. They would occur within lhe
boundaries of the project, and but for the effort to curtail flooding the injuries
would not have happened. Yet they would have nothing to do with managem~nt
of flood waters, and it is hard to conceive that they are "damage from or by floods
or flood waters" within the scope of § 702c.
J

Fryman v. United States, 901 F.2d 79,81 (7th Cir. 1990).

8

In re Katrina

Canal Breaches Litig., 673 F.3d at 387 (citing Cent. Green Co. v. United States, 531 U.S. 425, 121

S. Ct. 1005, 148 L. Ed. 2d 919 (2001) and Graci v. United States, 456 F.2d 20j(5th Cir. 1971».
i

;

Thus, for Section 702c to preclude this suit, the suit must concern either flood-dontrol activity or
related negligence.
The suit concerns the issuance of a LOMR, a revision to the initial flood control mapping
project by FEMA. Kmart argues that the issuance ofthe LOMR was not a flood-control activity
for purposes of Section 702c, and thus that FEMA is not immune from this suit. Kmart contends:
The United States's argument ignores the fact that Kmart did not
incur flood damages as a result of the initial flood control mappipg
project for the City of Corinth or the property surrounding its stote.
Rather, Kmart incurred damages due to a subsequent LOMR tllat
was improperly granted by FEMA thirteen years after the Kroger
store was constructed. More important, the damage was caused by
FEMA approving the Kroger for removal from a floodway. ntat
action was the opposite of a flood control activity.
\
Pl.'s Resp. Opp'n to FEMA's Mot. Dismiss [39] at 22 (emphases in original).
FEMA argues that the issuance of the LOMR is a flood control

initiativ~

which precludes

liability under Section 702c. Indeed, courts have held that flood control involves any expenditure
offunds related to flood control. See, e.g., Nat'/ Mfg. Co. v. United States, 210 ".2d 263 (8th Cir.
f

1954) (forecasting floods are part of flood control project); Britt v. United Sta,es, 515 F. Supp.
f

1159, 1162 (M.D. Ala. 1981) (preparation and dissemination of flood hazard map pursuant to the

I

NFIA is an integral part of a congressionally mandated flood control initiative). It follows, then,
that the LOMR issued by FEMA in this case was prepared and dissemi~ted pursuant to
1

congressionally mandated flood control initiatives, specifically the NFIA and t1!te Flood Disaster
1

Protection Act of 1973, Pub. L. 93-237,87 Stat. 975 (1973), and that the issuance of the LOMR is
an integral part of these initiatives. It further follows that FEMA is immune frdm this suit under
9

,

Section 702c of the FCA. However, this Court finds that FEMA is immune tfum suit on other
grounds.
2. 42 Us.c. § 4104(g) o/the NFIA
Second, FEMA maintains that Plaintiffs claims are barred by the 1i~nited waiver of

i

sovereign immunity found in the NFIA, 42 U.S.C. § 4104(g). Kmart concedes , its response to
~n
the motion to dismiss that the NFIA does not provide a cause of action for tts damages, and
maintains that instead its claims against FEMA are brought under the FTCA. FEMA argues in
reply, however, that "the NFIA precludes Plaintiffs claim under the FTCA," as Ule NFIA "makes
!

clear that Congress intended for the appeal procedures provided at 42 U.S.C. ~ 4104 to be the
exclusive avenue for challenging a flood mapping action." FEMA's Reply Supp. Mot. Dismiss
[45] at 10--11.
The NFIA waives sovereign immunity for challenges concerning flood in$urance and flood
1

elevation determinations. The NFIA provides in pertinent part:

:

1

Any appellant aggrieved by any final [flood elevation] de~rmination of the
Director upon administrative appeal, as provided by this section,lmay appeal such
determination to the United States district court for the district within which the
community is located not more than sixty days after receipt elf notice of such
determination . . .. During the pendency of any such litigation, all final
determinations of the Director shall be effective for the purpos.s of this chapter
i
unless stayed by the court for good cause shown.
42 U.S.C. § 4104(g); see Till v. Unifirst Fed. Sav. & Loan Ass'n, 653 F.2d 152,

16P (5th Cir. 1981).
1

These challenges are limited to whether FEMA's proposed flood elevations ar¢ scientifically or
technically incorrect. 42 U.S.C. § 4104(b). Obviously, then, a challenge to

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flood elevation

I

determination falls squarely within the ambit of the NFIA. Courts have held (that LOMRs are
flood elevation determinations contemplated by the NFIA.

10

See, e.g., Greclt Rivers Habitat
I

Alliance v. FEMA, 615 F.3d 985, 987-89 (8th Cir. 2010); Coal. for a Sustainabl1 Delta v. FEMA,
812 F. Supp. 2d 1089, 1102 (E.D. Cal. 201l). However, the Court finds that PEMA is immune
from suit on other grounds. 5
3. Federal Tort Claims Act
Finally, FEMA contends that no waiver of sovereign immunity exists un~er the FTCA, as
no analogous tort exists under Mississippi law and FEMA's issuance ofthe LOMR is subject to the
discretionary function exception. The FTCA authorizes suits against the United States sounding
i

in state tort for money damages arising from:
injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office pr
employment, under circumstances where the United States, if: a
private person, would be liable to the claimant in accordance w~h
the law of the place where the act or omission occurred.
.
28 U.S.C. § 1346(b)(1).
The FTCA's sovereign immunity waiver provides as follows:
The United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the sathe
extent as a private individual under like circumstances, but shall qot
be liable for interest prior to judgment or for punitive damages. 1
28 U.S.C. § 2674. Thus, for Kmart to have viable claims against FEMA under:the FTCA, a tort
claim in the same manner must exist under Mississippi state law.
I

FEMA contends that Kmart's claims against it are time-barred, as the LOMR in ~uestion was issued
sometime in 2005, and Kmart failed to appeal the proposed base flood elevations within sixty dats, as required by the
NFIA. Kmart argues in response that FEMA failed to follow the requirements of the statute, in41uding performing a
required flood study, providing public notice, notifying affected property owners, and reviewitig and approving the
LOMR issued to Kroger. The Court does not reach this issue, but notes that FEMA informed K~art by a letter dated
January 4,2011, that it was denying Kmart's administrative claim against FEMA as an impr~per claim under the
FTCA and that "if [Kmart] is dissatisfied with this determination, [Kmart] may file suit in an appr~priate United States
District Court not later than six months after the date of mailing of this notification of denial," ~ee id. at 25. Kmart
then filed suit on May 2,2011, well within six months after the date FEMA's denial letter was ntailed.
5

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11

I

Kmart argues that its cause of action is permitted by the FTCA becadse it is based on
negligent actions and omissions ofFEMA's employees that allowed an encroachkent to remain in
i

a floodway, which ultimately caused damage to Kmart. Kmart argues that "[t]~ analogous state
,

law liability at issue in this matter is not limited to whether a private individual would be held
liable for negligent enforcement of regulations," but "[r]ather, ... whether a private individual
i

:

could be held liable under Mississippi state law for flood damages incurred by ~djacent property
owners after the individuals placed a building in a floodplain." Pl.'s Resp. qpp'n to FEMA's
Mot. Dismiss [39] at 24. Kmart maintains that under Mississippi law, an individual owes a duty
!

ofreasonable care to avoid injury to nearby property owners, and H[t]here is no d~ubt that a private
individual would be held liable for flood damages caused by the placement qt' a building in a
I
,

floodplain, and the United States' improper attempt to narrow the scope of the ar+uogous state law
liability in this matter should be rejected." Id. at 25.
FEMA argues in reply that "[a] private person could not develop a FtRM or update a
i
,
1
FIRM," nor "ensure adequate safeguards and land use restrictions are implemehted to minimize
J

future losses of life and property in order to provide subsidized flood

insurance.~'

FEMA's Reply

condu~

here is uniquely

Supp. Mot. Dismiss [45] at 12. FEMA maintains that "[t]he challenged

governmental and based on a federal statute, the NFIA" and Kmart's claim is n~t actionable. Id.
Kmart's claims against FEMA are that FEMA improperly issued the LOMR to I{roger allowing it
i

I

to remain in the floodway, and that FEMA violated various provisions of the NRIA. HAs long as
I

state tort law creates the relevant duty, the FTCA permits suit for violations of federal statutes and
,
regulations." Freeman v. United States, 536 F.3d 326, 335 (5th Cir.

2009)~

see Johnson v.

Sal1)ler, 47 F.3d 716, 728 (5th Cir. 1995) (en banc). However, courts are not aJIowed to "base a

12

waiver simply upon a finding that local law would make a state or

munici~l

entity liable."

United States v. Olson, 546 U.S. 43, 44, 126 S. Ct. 510, 163 L. Ed. 2d 306 (2005j. "[T]he United

States waives sovereign immunity 'under circumstances' where local law wou14 make a 'private

,
r

person' liable in tort." Id. (emphasis in original). The Fifth Circuit has he* that no federal
i

private right of action exists for alleged violations of the NFIA. See Audler v.

qsc Innovis, Inc.,

519 F.3d 239, 253 (5th Cir. 2008) (citing Till, 653 F.2d at 161-62)); Saadat

v1 Landsafe Flood

i

i

Determination, Inc., 253 F. App'x 343,344 (5th Crr. 2007). Of course, whethe~a state law cause
I
I

of action exists for violations of the NFIA is a separate question, and one t~at has not been
answered by the Mississippi Supreme Court. However, state courts that have co~sidered the issue
i

have found that no analogous state tort existed. See, e.g., Lukosus v. First Tenn. Bank Nat 'I Ass'n,
No. 02-84,2003 WL 21658263, at *2 (W.O. Va. July 9, 2003); Mid-Am. Nat'l Bi;.nkofChicago v.

First Sav. & Loan Ass 'n ofS. Holland, 515 N .E.2d 176 (Ill. App. 1987); R.B.J. Apartments, Inc. v.
,

Gate City Sav. & Loan Assoc., 315 N.W.2d 284,290 (N.D. 1982). And Mississippi district courts
i

,

making an Erie guess as to how Mississippi courts would rule on the issue have ~efused to allow a
negligence claim based on flood zone detenninations, finding any alleged duty ~ provide correct
i
.

.

flood zone determinations arises out of the NFIA, and not from any state 14w. See Ellis v.

Countrywide Home Loans, Inc., 541 F. Supp. 2d 833, 837 (S.D. Miss. 2008); \Kearney v. First
i

Horizon Home Loan Corp., No. 1:07cv121 LG-JMR, 2007 WL 4302963 (S.p. Miss. Dec. 6,
2007); Lusins v. First Am. Real Estate Solutions ofTex. , L.P., No.1 :06cv646, 2~07 WL 1745625

!

(S.D. Miss. June 14, 2007). It is not necessary for this Court to make an Eri~ guess as to how
Mississippi courts would rule on this issue, however, as even if this Court allowd,d Kmart to assert
claims against FEMA finding that a private cause of action existed under statt law, the FTCA

13

excepts discretionary functions and duties from the waiver ofsovereign immunity. See 28 U .S.C.
§ 2690{a).
FEMA also maintains Kmart's claims against it are barred, because th~ claims concern
flood mapping, a discretionary function excepted from liability under 28 U.S.cJ § 2680(a) of the
FTCA. To survive the motion to dismiss on this ground, Kmart "must

advan~e

a claim that is

facially outside the discretionary function exception." See St. Tammany Parish, ex reI. Davis v.

FEMA, 556 F.3d 307,315 n.3 (5th Cir. 2009) (also noting that the law is uncle¥" on which party
bears the burden ofproofwith respect to the whether a discretionary function exc¢ption to a waiver
of sovereign immunity applies). The FTCA provides that the waiver of sovereign immunity does
not apply to
[a]ny claim based upon an act or omission of an employee of t~e
Government, exercising due care, in the execution of a statute ~r
regulation, whether or not such statute or regulation be valid, br
based upon the exercise or performance or the failure to exercise pr
perform a discretionary function or duty on the part of a fede~a1
agency or an employee of the Government, whether or not tre
discretion involved be abused.
28 U.S.c. § 2680(a). The discretionary function exception applies only to <lcts involving an
element of judgment or choice. United States v. Gaubert, 499 U.S. 315, 322,:111 S. Ct. 1267,
1273, 113 L. Ed. 2d 335 (1991 ) (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S. CL
l

1954,100 L. Ed.2d 531 (1988)). "The requirement of judgment or choice islnot satisfied if a
'federal statute, regulation, or policy specifically prescribes a course of action fQr an employee to
follow,' because 'the employee has no rightful option but to adhere to the directi1re.'" Id. at 322,
111 S. Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S. Ct. 1954). "[I]t islthe nature of the
conduct, rather than the status of the actor, that governs whether the except~n applies." Id.
i

14

(citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig A~rlines), 467 U.S.
797,813, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), reh'g denied, 468 U.S. 1226,1105 S. Ct. 26, 82
L. Ed. 2d 919 (1984) (internal quotation marks omitted)). The exception is intended to "prevent

judicial second guessing of legislative and administrative decisions grounded in focial, economic,
and political policy through the medium of an action in tort." Id. at 323, 111 Sf Ct. 1267 (citing
i

Varig Airlines, 467 U.S. at 814, 104 S. Ct. 2755) (internal quotation marks qrnitted)). Under
i

Gaubert, to detennine whether FEMA's actions concerning the issuance of the tOMR to Kroger
were discretionary and thus preclude liability, the Court must first examine whpther there was a
prescribed course of conduct for FEMA to follow in statutes, regulations, or policies; and second,
whether FEMA's actions were susceptible to policy judgment.
(1)

Was there a statute, regulation, or policy that specificaUt prescribed the
course of action for FEMA to follow?
i

"If a statute, regulation, or policy leaves it to a federal agency or emplQyee to determine
i
;

when and how to take action, the agency is not bound to act in a particular mannet and the exercise
of its authority is discretionary." Freeman, 556 F.3d at 337. However, "if a 'federal statute,
regulation, or policy specifically prescribes a course of action for an employee tq follow,' ... 'the
I

employee has no rightful option but to adhere to the directive,' " and thus fue discretionary
i

function exception does not apply. Gaubert, 499 U.S. at 322, 111 S. Ct. 1267 (~otingBerkovitz,
486 U.S. at 536, 108 S. Ct. 1954).
FEMA maintains that the discretionary function exception applies even iJil the absence of a
conscious policy decision, as long as the decisional area is susceptible to policy ~alysis. FEMA
}

further maintains that "[f]lood mapping requires FEMA to make determination$ where scientific
and technical correctness is often a matter of degree rather than absolute." FEMA's Mem. Law
15

Supp. Mot. Dismiss [31] at 16. FEMA contends that it "issues LOMRs based upon scientific
studies utilizing the expertise of its engineers and its own judgment." Id. FE1fA maintains that
;

i

no mandatory statute, regulation, or policy prevents FEMA from issuing or denyjng a LOMR; the
I

NFIA explicitly delegates that authority to FEMA. FEMA argues that a specifi¢ course of action
is not provided by statute or regulation that FEMA must adhere to when analyztng scientific and
technical data, and further that "[t]he decision to grant or deny a map

chang~

or modification

I

clearly involves an element ofjudgment." FEMA's Reply Supp. Mot. Dismiss (45] at 13.
Kmart argues in response that the NFIA specifically provides a course of ~ction that FEMA
I

failed to follow. Kmart cites provisions of the NFIA, including Section 4104,: which mandates
published notice of flood elevation determinations and maintains that FEMA fa~ed to follow this
procedure. Kmart further maintains that FEMA's actions in issuing the LOM~ for the Kroger
!

store were specifically delineated in the Code of Federal Regulations. Howev~r, Kmart fails to
identify any specific, nondiscretionary function or duty undertaken by FEMk. in issuing the
I

LOMR, and instead cites several regulatory provisions containing language tha. is too general to
i

j

specifically prescribe the course of action for FEMA to follow. Kmart

cit~
i

provisions that

contain directives to the affected community, not to FEMA ("[a] commu~ity's base flood
1

elevations may increase or decrease resulting from physical changes afecting flooding
conditions"; "a community shall notify the Administrator of the changes by sulimitting technical
1

or scientific data," 44 C.F.R. § 65.3; see generally § 65). Kmart cites regulati$s that pertain to
!

FEMA, but these regulations bestow discretion on the agency (referring to FUMA's review of
1
I

information to "evaluate" a community's "request [ed] changes to any of the infotpIation shown on
an effective map that does not impact flood plain or floodway delineations," 44 <X.F.R. §§ 65.5(a),

16

65.4). With respect to the identification of flood-prone areas, the NFIA pJovides that "the
j

Director [of FEMA] is authorized to consult with" officials to identify and pu"lish information
l
I
relating to flood hazard areas, and establish or update flood-zone risk data. tsee 42 U.S.c. §
l

4101(a) (emphasis added).

This language, particularly "is authorized," in<Jicates Congress

intended FEMA to exercise discretion in such matters. See St. Tammany Pari!h, ex rei. Davis,
j

556 F.3d at 324 (such words as "may" and "is authorized" indicate agency's dispretion); see also

Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 557 (5th Cir. 1988). 1the NFIA further

.

provides that "[0 ]nce during each 5-year period ... or more often as the Di*ctor determines
necessary, the Director shall assess the need to revise and update all floodplain ar~as and flood risk
I

zones ...." 42 U.S.C. § 4101(e) (emphases added). This language similarlyiJdicates FEMA's
I

discretion in these matters. See Powers v. United States, 996 F.2d 1121, 1125 d11th Cir. 1993) (
"shall" followed by "from time to time take such action as may be necessary" itldicates agency's
discretion). Particularly pertinent to this case are the following NFIA provision~:
j

The Director shall revise and update any floodplain areas aid
flood-risk zones­
(1) upon the determination of the Director, according to t~e
assessment under subsection (e) of this section, that revision aid
updating are necessary for the areas and zones; or
I

(2) upon the request from any State or local government stating tlitt
specific floodplain areas or flood-risk zones in the State or locality
need revision or updating, if sufficient technical data justifYing t.e
request is submitted and the unit of government making the requqst
agrees to provide funds in an amount determined by the Directqr,
but which may not exceed 50 percent of the cost of carrying out t"e
requested revision or update.
42 U.S.C. § 4101(f) (emphases added). The language, particularly the emp~asized portions,
shows Congress's intent to leave flood mapping determinations to the discretion jof FEMA.
17

(2)

Were FEMA's actions susceptible to policy judgment?

Although FEMA's actions concerning issuance of the LOMR invol~ an element of
choice, the discretionary function exception "protects only governmental actidns and decisions
based on considerations of public policy," as "the purpose of the exception is t~ prevent judicial

,
second-guessing of legislative and administrative decisions grounded in social, economic, and
l

political policy through the medium of an action in tort." See Ashford v. United States, No.1 0­
40804,2012 WL 695132, at *6 (5th Cir. Mar. 5,2012) (quoting Gaubert, 499 U~S. at 323, 111 S.
Ct. 1267 (internal quotation marks and citations omitted»).
FEMA contends that flood mapping determinations are based upon

~onsiderations

of

I

public policy, and cites the primary objectives of the NIF A: "to provide relief froln the destruction
i

caused by floods by making flood insurance generally available and reasonable premium rates and
1

to require local jurisdictions to enact land use and control measures designed to tuide the rational
use of flood plains as a condition for the availability of

Federally-subsi~ized insurance."

FEMA's Mem. Law SUpp. Mot. Dismiss [31] at 17 (citing S. REp. No. 95-583,

~eprinted

in 1973

U.S.C.C.A.N. 3217, 3218-3219). FEMA contends that each decision regardin~the issuance ofa
LOMR "affects the economic efficiency of the [NFIP] and the social, and wssibly political,
i

satisfaction of committees impacted by FEMA's mapping determinations." Idj FEMA further
i

contends that if the Court accepts Plaintiff's argument, "any error in flood mapping that FEMA
made could result in liability. The purpose of flood mapping is to identifY and!publish all flood
i

plain areas ... which have special food hazards ... and establish all flood-risk1 zone data ...."
I

FEMA's Reply SUpp. Mot. Dismiss [45] at 5.

The Court finds FEMA'slargument to be

persuasive, and further holds that FEMA's actions or inactions regarding the issuance of the

18

LOMR are protected under the discretionary function exception to the FTCA. Thus, this Court
has no subject-matter jurisdiction over Kmart's claims against FEMA, and such claims are
properly dismissed.
F. Conclusion

In sum, the NFIA and its regulations do not give rise to a mandatory du,y. They instead
permit discretionary, policy-oriented choices that cannot be the basis for the court's subject-matter
I

!

jurisdiction. Hence, FEMA's motion to dismiss [30] is GRANTED for lack pf subject-matter
jurisdiction under Rule 12(b)(1).
THIS

II

?
day of June, 2012.

&j/9aJ.,-­

SENIORJUD

19