United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
case arises from the catastrophic flooding that struck
southern Louisiana in August 2016. (Doc. 1 at ¶ 11).
Plaintiff alleges that the flood caused substantial damage to
his property at 16941 Ashton Ave, Greenwell Springs,
Louisiana. Id. He also alleges that the Federal
Emergency Management Agency ("FEMA") issued him
insurance under the National Flood Insurance Program, and
FEMA has failed to fully pay his flood claim. Id. at
¶ 8, 26.
the flood, Plaintiff made a flood damage claim to FEMA. (Doc.
6-2 at ¶ 7). On September 4, 2016, FEMA provided
Plaintiff an advance payment of $10, 000 for building damage.
Id. at ¶ 8. About a month later, Plaintiff
submitted a proof of loss for $52, 098.19. Id. at
¶ 10. A month later, FEMA paid Plaintiff an additional
$42, 098.19, and coupled with the $10, 000 payment, FEMA had
therefore paid the full amount of Plaintiffs claim.
Id. at ¶ 10. Then on October 9, 2017, two days
before Plaintiff filed suit here, he submitted a second proof
of loss claim for $113, 000, the policy limit. Id.
at ¶ 11. FEMA has not denied this claim, nor has it paid
the claim. Id. at 1| 12.
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 companies. Id.
sued the Administrator of FEMA and the Acting Secretary of
Homeland Security. Id. at ¶ 9-10. He sued for
breach of contract. Id. at ¶ 25-32. Defendant
thereafter filed a Motion to Dismiss. (Doc. 6).
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.
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 $52, 098.19, and FEMA received
Plaintiffs second claim for $113, 000 only days before
Plaintiff filed suit, and FEMA has not disallowed the second
claim. (Doc. 6-2 at ¶ 9-11). 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 ...