United States District Court, M.D. Louisiana
JAMES BERNARD, ET AL.
NATIONAL FLOOD INSURANCE PROGRAM, ET AL
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
case arises from the catastrophic flooding that struck
southern Louisiana in August 2016. (Doc. 1 at ¶ 11).
Plaintiffs James and Johnnie Bernard allege that the flood
caused substantial damage to their property at 7911 Evergreen
Drive, Denham Springs, Louisiana. Id. They also
allege that the Federal Emergency Management Agency
("FEMA") issued them insurance under the National
Flood Insurance Program, and FEMA has failed to fully pay
their flood claim. Id. at ¶ 8, 26.
the flood, Plaintiffs made a flood damage claim to FEMA.
(Doc. 6-2 at ¶ 7). On August 24, 2016, FEMA provided
Plaintiffs an advance payment of $20, 000 for building
damage. Id. at ¶ 8. About a month later,
Plaintiffs submitted a claim for $135, 293.75. Id.
at ¶ 9. A month after that, FEMA paid Plaintiff $115,
293.75 in an insurance payout. Id. at ¶ 10.
With the $20, 000 advance payment, FEMA therefore paid a
total of $135, 293.75, which is the total amount requested by
Plaintiff. Id. Then, on July 28, 2017, Plaintiff
filed a second claim for $250, 000, the policy limit.
Id. at ¶ 11. FEMA has not denied Plaintiffs
claim or any portion of Plaintiffs claim. (Doc. 6-2 at ¶
of background, the National Flood Insurance Program is a
federally supervised insurance program established by the
National Flood Insurance Act of 1968 and administered by
FEMA, which guarantees and subsidizes flood insurance. See 44
C.F.R. §§ 59-79 (2013). The National Flood
Insurance Program includes two types of government-financed
flood insurance. First, there is the Government program,
where policyholders, like Plaintiff, are insured directly by
FEMA. Palmieri v. Allstate Ins. Co., 445 F.3d 179,
183 (2d Cir. 2006) (citing 42 U.S.C. §§ 4071-4072)
(internal quotations and citation omitted). Under the second
program, which Plaintiffs' claims do not arise under,
called the Write Your Own program ("WYO"),
policyholders are insured by participating private insurance
sued the Administrator of FEMA and the Acting Secretary of
Homeland Security for breach of contract. (Doc. lat¶
25-32). Defendants thereafter filed a Motion to Dismiss.
courts are courts of limited jurisdiction; without
jurisdiction conferred by statute, they lack the power to
adjudicate claims." In re FEMA Trailer Formaldehyde
Products Liab. Litig, 668 F.3d 281, 286 (5th Cir. 2012).
Under Rule 12(b)(1) a claim is "properly dismissed for
lack of subject-matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the
claim." Id. (quoting Home Builders Ass
'n, Inc. v. City of Madison, 143 F.3d 1006, 1010
(5th Cir. 1998)). A court should consider a Rule
12(b)(1) attack before addressing any
challenge on the merits. Id.
traditional Rule 12(b)(6) motion to dismiss, a court's
analysis is generally confined to a review of the complaint
and proper attachments. Lane v. Halliburton, 529
F.3d 548, 557 (5th Cir. 2008). "However, under Rule
12(b)(1), the court may find a plausible set of facts by
considering . . . '(1) the complaint alone; (2) the
complaint supplemented by the undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed
facts.'" Id. (quoting
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
contend that sovereign immunity bars Plaintiffs' suit.
(Doc. 6). It is well-established that the United States and
its agencies are immune from suit unless Congress explicitly
waives sovereign immunity. U.S. Dept. of Energy v.
Ohio, 503 U.S. 607, 615, (1992). If Congress has enacted
a waiver of sovereign immunity, it must be construed
narrowly. See Lane v. Pena, 518 U.S. 187, 192
(1996). The National Flood Insurance Act contains a limited
waiver of sovereign immunity in § 4072 for National
Flood Insurance claims. It provides that "upon the
disallowance by the [FEMA] Administrator of any such claim,
or upon the refusal of the claimant to accept the amount
allowed upon any such claim, the claimant, within one year
after the date of mailing of notice of disallowance or
partial disallowance by the Administrator, may institute an
action against the Administrator[.]" 42 U.S.C. §
argue that § 4072, which creates the limited waiver of
sovereign immunity, only permits a claimant to sue FEMA if
the agency has disallowed a claimant's flood claim. (Doc.
6-1 at p. 6). The Court agrees. Section 4072 makes clear that
a claimant "may institute an action" only
"within one year after the date of mailing of notice of
disallowance or partial disallowance[.]" The
disallowance of a claim is therefore required before a
claimant can file suit. See Downey v. State Farm Fire
& Cas. Co., 276 F.3d 243, 245 (7th Cir. 2001);
Qader v. Fed. Emergency Mgmt. Agency, 543 F.Supp.2d
558, 562 (E.D. La. 2008).
FEMA claim has not been disallowed and therefore this suit is
premature. Here, the evidence reflects that FEMA fully paid
Plaintiffs' first claim for $135, 293.75, and FEMA
received Plaintiffs second claim for $250, 000 but FEMA has
not disallowed the claim. (Doc. 6-2). Indeed, FEMA did not
make a determination one way or the other if it would pay
Plaintiffs claim. Id. To be sure, the information
about FEMA's course of dealings with Plaintiff comes from
an affidavit from a FEMA insurance examiner. Id. But
on a motion to dismiss for lack of jurisdiction under Rule
12(b)(1), the Court may consider evidence ...