United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON JUDGE.
the Court is the Motion to Dismiss (Doc. 15)
filed by the Defendant Federal Emergency Management Agency.
Plaintiff Tammy Armstrong filed an opposition, (Doc. 17), and
Defendant filed a reply. (Doc. 18). For the following
reasons, the Motion to Dismiss (Doc. 15) is
case arises from the catastrophic flooding that struck
southern Louisiana in August 2016. (Doc. 1 at ¶ 5).
Plaintiff alleges that the flood caused substantial damage to
her property at 3643 Yosemite Drive, Baton Rouge, Louisiana.
Id. She also alleges that the Federal Emergency
Management Agency ("FEMA") issued her insurance
under the National Flood Insurance Program, and FEMA has
failed to pay her flood claim. Id. at ¶ 3.
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). In the Government
program, "the government run[s] the National Flood
Insurance Program itself-offering federally underwritten
policies[.]" Id. 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.
"Although FEMA may issue policies directly under the
Government Program, 'more than 90% are written by WYO
companies.'" Id. (quoting C.E.R. 1988,
Inc. v. Aetna Cas. and Surety Co., 386 F.3d 263, 267 (3d
contends that she filed a flood claim with FEMA, and FEMA
submitted an estimate for $49, 255.00 with an accompanying
payment of $36, 565.60, but that this amount was less than
she needed to repair her property. (Doc. 1 at ¶ 7).
Plaintiff then alleges that she submitted a supplemental
flood claim totaling $69, 159.44. Id. at ¶ 8.
She alleges that FEMA agreed through a claims adjuster to pay
an additional $39, 957.63 plus $7, 651.85 for depreciation,
but has failed to do so. Id. at ¶ 9.
sued the Acting Secretary of Homeland Security. Id. at
¶ 2. She sued for breach of insurance contract and
failure to tender payment for casualty losses. Id.
at ¶ 2. Defendant 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.
contends that Plaintiff has improperly sued the Secretary of
Homeland Security, rather than the Administrator of FEMA who
is the proper defendant. (Doc. 15-1 at p. 3). In support of
its argument, Defendant relies on the provision of the
National Flood Insurance Act, which provides federal courts
with jurisdiction to hear disputes over National Flood
Insurance claims. See 42 U.S.C. § 4072. Under
42 U.S.C. § 4072, the United States has enacted a
limited waiver of sovereign immunity to provide federal
courts with exclusive jurisdiction for claims arising out of
the National Flood Insurance Program. Ferraro v. Liberty
Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015).
Section 4072 provides that a national flood insurance
claimant "may institute an action against the
Administrator on such claim in the United States
district court for the district in which the insured property
or the major part thereof shall have been situated[.]"
Id. (emphasis added). "Administrator"
refers to the Administrator of FEMA. § 4004(a)(3). And
federal courts have jurisdiction over these claims
"without regard to the amount in the controversy."
though Plaintiff agrees that § 4072 provides that
claimants must sue the Administrator of FEMA for National
Flood Insurance-related claims, Plaintiff argues that the
Secretary of Homeland Security is the proper defendant. (Doc.
17 at p. 1-2). Plaintiff contends that because the Homeland
Security Act of 2002, which created the Department of
Homeland Security, transferred FEMAs functions to the
Department of Homeland Security, the Secretary of Homeland
Security must be sued for claims involving the National Flood
Insurance Program. (Doc. 17 at p. 2). In other words,
Plaintiff contends that because FEMA moved under Homeland
Security's umbrella, only the Secretary of Homeland
Security may be sued for flood-related claims. Plaintiff is
correct that in 2002, FEMA's functions were transferred
to Homeland Security, but it does not follow that the
Secretary of Homeland Security must be sued for National
Flood Insurance Program claims. See Homeland Security Act of
2002, PL 107-296, tit. V, § 503, November 25, 2002, 116
problem with Plaintiffs argument is that ten years after
Congress created the Department of Homeland Security, and it
supposedly stripped the FEMA administrator of its role,
Congress amended the National Flood Insurance Act to provide
that the Administrator of FEMA must be sued for National
Flood Insurance Program claims. See Moving Ahead for Progress
in the 21st Century Act, Pub. L. 112-141, div. f,
tit. II, § 100238(b)(1), 126 Stat. 412 (2012) (codified
at 42 U.S.C. § 4072 and 4121(a)(6) (2016)). Before 2012,
claimants had to sue the Director of FEMA. See
Supplemental Appropriations Act, Pub. L. 98-181, tit. IV,
§ 451(d)(1), 97 Stat. 1157 (1983) (codified at 42 U.S.C.
§ 4072 and 4121(a)(6) (1988)). And before 1983,
claimants had to sue the Secretary of Housing and Urban
Development. See National Flood Insurance Act of 1968, Pub.
L. 90-448, tit. XIII, § 1341 and 1370(6), 82 Stat. 584
(1968) (codified at 42 U.S.C. § 4072 and 4121(a)(6)
Congress amends a statute, it reflects an intention to change
the meaning of that statute. See Rumsfeld v. Forum for
Academic & Institutional Rights, Inc.,547 U.S. 47,
57-58 (2006). The Supreme Court has "refuse[d] to
interpret [a statute] in a way that negates its recent
revision, and indeed would render it a largely meaningless
exercise." Id. But that is precisely what
Plaintiff seeks to do. If Plaintiff were correct that the
Homeland Security Act of 2002 requires claimants to sue the
Secretary of Homeland Security for National Flood Insurance