1-26-2011 Feds Motion to Dismiss

8/7/2019 1-26-2011 Feds Motion to Dismiss

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

CITY OF ALEXANDRIA; CITY OF ) CIVIL ACTION NO. 10-1849

PINEVILLE )) JUDGE HICKS

versus )

) MAGISTRATE JUDGE HORNSBY

FEDERAL EMERGENCY )

MANAGEMENT AGENCY; U.S. DEPT. )

OF HOMELAND SECURITY; W. )

CRAIG FUGATE; U.S. ARMY CORPS )

OF ENGINEERS; ROBERT VAN )

ANTWERP )

UNITED STATES MOTION FOR LEAVETO EXCEED PAGE LIMIT IN ITS

MEMORANDUM IN SUPPORT OFMOTION TO DISMISS

NOW INTO COURT, through undersigned counsel, comes the United States of America

on behalf of all Federal Defendants who respectfully move this Court for an Order allowing it to

exceed the twenty-five (25) page limitation set forth in Local Rule 7.8W of the Western District of

Louisiana and for permission to file its Memorandum in Support of its Motion to Dismiss, not to

exceed thirty (30) pages in length.

In order to properly convey the facts of this case and fully address all of the threshold

jurisdictional issues raised by the Complaint and Motion for Stay and/or Preliminary Injunction,

the United States requires more than the twenty-five (25) pages allowed by Local Rule 7.8W.

The Complaint filed in this action consists of thirty-seven (37) pages, exclusive of

exhibits. The Court has scheduled an evidentiary hearing on Plaintiffs Motion for Preliminary

Injunction. The jurisdictional defenses to this action should be addressed prior to the hearing and

are thoroughly addressed in the supporting memorandum.

Case 1:10-cv-01849-SMH-MLH Document 19 Filed 01/26/11 Page 1 of 3 PageID #: 282


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WHEREFORE, theUnited States prays that an Order issue herein allowing the United

States to file its Memorandum in Support of its Motion to Dismiss, with a page limit exceeding

the twenty-five (25) pages allowed by Local Rule 7.8W of the Western District of Louisiana, but

not to exceed thirty (30) pages.

Respectfully Submitted,

STEPHANIE A. FINLEY

UNITED STATES ATTORNEY

s/ Katherine W. Vincent

Katherine W. Vincent (#18717)

Assistant United States Attorney

800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501-7206Telephone: (337) 262-6618

2



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CERTIFICATE OF SERVICE

I hereby certify that on this 26 day of January, 2011, a copy of the foregoing Motion forth

Leave to Exceed Page Limit in its Memorandum in Support of Motion to Dismiss; a proposed

Order; proposed pleadings 1) Motion to Dismiss; 2) Memorandum in Support; and a 3) proposed

Order, were filed electronically with the Clerk of Court using the CM/ECF system. I also certify

that according to the Courts Electronic Mail Notice List, there are no manual recipients.

s/ Katherine W. Vincent

Katherine W. Vincent (#18717)


3



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ALEXANDRIA DIVISION


PINEVILLE )

) JUDGE HICKSversus )


FEDERAL EMERGENCY )





ANTWERP )

O R D E R

Considering the United States foregoing Motion to Exceed Page Limit in its

Memorandum in Support of Motion to Dismiss,

IT IS ORDERED that the United States be allowed to file its Memorandum in Support of

its Motion to Dismiss, the length of which will exceed the page limitation set forth in Local Rule

7.8W of the Western District of Louisiana, but which Memorandum shall not exceed thirty (30)

pages.

Shreveport, Louisiana, this ______ day of ____________, 2011.

_______________________________________

HONORABLE S. MAURICE HICKS, JR.

UNITED STATES DISTRICT JUDGE

Case 1:10-cv-01849-SMH-MLH Document 19-1 Filed 01/26/11 Page 1 of 1 PageID #: 285


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ALEXANDRIA DIVISION


PINEVILLE )) JUDGE HICKS

versus )


FEDERAL EMERGENCY )





ANTWERP )

MOTION TO DISMISS

NOW INTO COURT, through undersigned counsel, comes the United States of

America, represented by Stephanie A. Finley, United States Attorney for the Western District of

Louisiana, and Assistant United States Attorney, Katherine W. Vincent, who move to dismiss

Plaintiffs Original Complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil

Procedure for the reasons set forth in the supporting memorandum filed herewith.

Respectfully submitted,

STEPHANIE A. FINLEY

United States Attorney

BY: s/ Katherine W. Vincent

KATHERINE W. VINCENT (#18717)



Lafayette, Louisiana 70501-6832

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

ATTORNEYS FOR THE UNITED

STATES OF AMERICA AND ALL

FEDERAL DEFENDANTS



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ALEXANDRIA DIVISION


PINEVILLE )) JUDGE HAIK

versus )


FEDERAL EMERGENCY )





ANTWERP )

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS



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TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. National Flood Insurance Program (the NFIP). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Flood Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Encouraging Sound Flood Management Ordinances in the Flood Plain. . . . . . . . . 6

C. Identifying and Mapping Flood Hazard Areas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Flood Insurance Studies and Restudies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. Finalizing Base Flood Elevations and FIRMS.. . . . . . . . . . . . . . . . . . . . . . 9

3. Judicial Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. The NFIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Levees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

V. Law and Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Rule 12(b)(1) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Sovereign Immunity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3. The Court Lacks Jurisdiction Over the Plaintiffs Claims Under APA.. . 18

(i) NFIA Precludes Review Under the APA.. . . . . . . . . . . . . . . . . . . 19(ii) No Final Agency Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4. Limited Waiver of Sovereign Immunity Under the NFIA.. . . . . . . . . . . . 22

5. Implied Contract Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Plaintiffs Have Failed To State a Claim Upon Which Relief May be Granted. . . 24

1. Rule 12(b)(6) Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2. Constitutional Challenge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3. Repair of the Levees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

4. Individual Federal Officials Named as Defendants. . . . . . . . . . . . . . . . . . 28

V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

i



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TABLE OF AUTHORITIES

Federal Cases

ACORN v. U.S. Army Corps of Engineers,

245 F.3d 790 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Adolph v. FEMA,

854 F.2d 732 (5th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25, 26

Anderson v. United States,

229 F.2d 675 (5th Cir 1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

Beale v. Blount,461 F.2d 1133 (5th Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Bell Atlantic Corp. v. Twombly,

127 S. Ct. 1955 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

Bennett v. Spear,

520 U.S. 154 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Berman v. U.S.,

264 F.3d 16 (1st Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Block v. Community Nutrition Institute,

467 U.S. 340 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

City of Biloxi v. Giuffrida,

608 F. Supp. 927 (S.D.Miss. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

City of Garden City, Kansas v. Fugate,

2010 WL 624163 (D.Kan. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

City of Trenton v. FEMA,

545 F. Supp. 13 (E.D. Mich. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

County of Monmouth v. FEMA,

2009 WL 3151331 (D.N.J. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Divine v. U.S.,

328 F.2d 305 (5th Cir. 1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii



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TABLE OF AUTHORITIES (Cont.)

Dugan v. Rank,

372 U.S. 609 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Elrod v. Burns,427 U.S. 347 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

FDIC v. Mayer,

510 U.S. 471 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Graham v. Henegar,

640 F.2d 732 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Great Rivers Habitat Alliance v. FEMA,

615 F.3d 985 (8th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 20

Hall v. U.S. Army Corps of Engineers,

2008 WL 483330 (D.Kan. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Home Builders Association of Miss., Inc. v. City of Madison, Miss.,

143 F.3d 1006 (5th Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 28

Lundeen v. Mineta,

291 F.3d 300 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Megapulse, Inc. v. Lewis,

672 F.2d 959 (Fed.Cir. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Ramming v. United States,

281 F.3d 158 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Reardon v. Krimm,

541 F. Supp. 187 (D. Kansas 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20

Robinson v. FEMA,

1987 WL 9906 (D.Mass. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii



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Seibert v. Baptist,

594 F.2d 423 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Taylor v. United States,2008 WL 4218770. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Texas Landowners v. Harris,

453 F. Supp. 1025 (D.D.C. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Idaho,

508 U.S. 1 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Mitchell,

463 U.S. 206 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

United States v. Parish of St. Bernard,

756 F.2d 1116 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. Patterson,

206 F.2d 345 (5th Cir. 1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Smith,

393 F.2d 318 (5th Cir. 1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Testan,

424 U.S. 392 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Williamson v. Tucker,

645 F.2d 404 (5th Cir.1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Federal Statutes

5 U.S.C. 701 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16, 18, 28

5 U.S.C. 702 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

5 U.S.C. 704 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22, 23

28 U.S.C. 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16

28 U.S.C. 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iv



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28 U.S.C. 1491(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

28 U.S.C. 2201-02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16, 17

31 U.S.C. 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

33 U.S.C. 701a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. 4001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

42 U.S.C. 4011(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

42 U.S.C. 4012(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

42 U.S.C. 4013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

42 U.S.C. 4101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

42 U.S.C. 4102(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

42 U.S.C. 4104 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 19, 20

44 C.F.R. 51.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

44 C.F.R. 59.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

44 C.F.R. 60.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

44 C.F.R. 60.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

44 C.F.R. 61.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

44 C.F.R. 64.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

44 C.F.R. 65.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

44 C.F.R. 67.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

44 C.F.R. 67.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

44 C.F.R. 67.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

v



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Federal Rules

Federal Rule of Civil Procedure 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 24, 15, 29, 30

Federal Rule of Civil Procedure 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 24, 29, 30

vi



13/41



ALEXANDRIA DIVISION


PINEVILLE )) JUDGE HAIK

versus )


FEDERAL EMERGENCY )





ANTWERP )

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

The Federal Emergency Management Agency (FEMA) and the United States Army Corps

of Engineers (the Corps) file this memorandum in support of the Motion to Dismiss pursuant to

Federal Rules of Civil Procedure 12(b)(1) and (6).1

The Government asserts as a threshold matter, Congress has not waived the United States

sovereign immunity for the Plaintiffs action. Thus, the evidentiary hearing scheduled in this matter

is unnecessary. Alternatively, the Plaintiffs Complaint fails to set forth a claim upon which relief

may be granted. For the reasons set forth below, this suit should be dismissed.

I. Introduction

The Plaintiffs sued FEMA and the Corps asserting a waiver of sovereign immunity under

5 U.S.C. 701, et seq., (the Administrative Procedures Act - the APA). The Plaintiffs further

asserted this Courts jurisdiction under 28 U.S.C. 1331 (federal question jurisdiction). The

Plaintiffs seek injunctive and declaratory relief (28 U.S.C. 2201-02).

FEMA and the Corps are collectively referred to as the Government in this Memorandum.1



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FEMA is the executive agency responsible for administering the National Flood Insurance

Program (NFIP), a voluntary federal initiative to provide flood insurance and reduce flood losses

in communities that choose to participate. To carry out this responsibility, FEMA is required to

identify the nations flood risks and periodically review and update flood maps; flood risk

information is used to identify special flood hazard areas and to determine applicable insurance

premium rates and required land use measures. In the fall of 2010, FEMA advised affected

communities in Rapides Parish that FEMA intended to issue proposed flood elevation determination

changes in early 2011. Plaintiffs challenge FEMAs decision to initiate the process that will

culminate in a revised flood hazard map. That process will begin when FEMA issues revised

preliminary Flood Insurance Rate Maps (FIRM) for Rapides Parish.2

It is undisputed that the Red River levees at issue here, (South Bank levee and East Bank

levee) are not certified; nor is it disputed that the levees fail to satisfy the criteria for certification and

therefore, accreditation by FEMA as they are not recognized as providing the level of protection

against the base flood. If the levees were certified, FEMA nor the Corps would be before this Court.

Plaintiffs would dispute the manner in which FEMA treats the uncertified levees in its analysis of

flood hazards along the Red River, but the parties that seek accreditation of a levee are required to

ensure that the levee meets safety standards and provide documentation showing the levee is

certified. FEMAs accreditation is a ministerial act, and FEMA has not yet initiated the

administrative process that will result in a revised FIRM.

As discussed below, the issuance of the proposed flood elevations and FIRM is preliminary.2

The proposed FIRM will not take effect until after the process required under the NFIA is complete and

FEMA has considered appropriate scientific and technical information received from affected property

owners or communities as part of the statutory administrative appeal process, made any modifications

indicated by the appeal information, and issued a final determination.

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Plaintiffs ask this Court to enjoin FEMA from issuing the revised preliminary FIRM.

Complaint, doc. #1, p. 36. Plaintiffs also seek a [d]eclaration of rights and obligations under the

NFIA [National Flood Insurance Act] and an order declaring FEMAs administration of the NFIP

as applied in this case unconstitutional as applied in [this case]. Id.

Plaintiffs lawsuit against the United States should be dismissed because this Court does not

have jurisdiction under the APA, and Plaintiffs have not met the prerequisite that triggers the limited

waiver of sovereign immunity in the NFIA. As discussed below, the Plaintiffs simply cannot show

that the United States has waived sovereign immunity for this action. Further, Plaintiffs have failed

to state a claim upon which relief may be granted.

II. National Flood Insurance Program(the NFIP)

Historically, floods have been one of the most destructive natural hazards facing the people

of the United States. See 33 U.S.C. 701a. The Federal Government initially addressed the problem

by funding flood-control projects. Id. 701a, 701a-1. (It is hereby recognized that destructive

floods upon the rivers of the United States . . . constitute a menace to national welfare; that it is the

sense of Congress that flood control on navigable waters . . . is the proper activities of the Federal

government . . .; that investigations and improvements of rivers and other water ways . . . for flood-

control purposes are in the interest of the general welfare . . .). However, after billions of Federal

dollars spent in flood control projects, the personal hardships and economic distress from flood

continued to increase -- largely as a result of unwise use of the Nations flood plains. Senate Report

No., 93-583 reprinted in U.S. Code Cong. & Admin. News 1973, 3317; see also, 42 U.S.C.

4001(despite the installation of preventative and protective works and the adoption of other public

programs designed to reduce losses caused by flood damage, these methods have not been sufficient

to protect adequately against growing exposure to future flood losses.)

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Congress responded by enacting the National Flood Insurance Act of 1968 (NFIA), 42

U.S.C. 4001 et seq., with the objective of establishing a unified national program for flood plain

management in response to its concern over the enormous "personal hardship and economic distress

[caused by flood damage] which have required unforeseen disaster relief measures and have placed

an increasing burden on our Nation's resources caused by flood disasters." 42 U.S.C. 4001(c);

4001(a)(1); 4002(a)(5). The NFIA was further modified and amended in 1973, in 1994 with the

passage of the Flood Disaster Protection Act, and in 2004 with the passage of the Bunning-Bereuter-

Blumenauer Flood Insurance Reform Act of 2004. 42 U.S.C. 4001 et seq.; P.L. 93-234, 87 Stat.

9705 (Dec. 31, 1973); P.L. 103-325, title 5, 108 Stat. 2255 (Sept. 3, 1994); P.L. 108-264 (Jun. 30,

2004).

The principal objectives of the NFIA were to provide relief from the destruction caused by

floods by making flood insurance generally available at reasonable premium rates and to require

local jurisdictions to enact land use and control measures designed to guide the rational use of flood

plains as a condition for the availability of Federally-subsidized insurance. Senate Report No., 93-

583 reprinted in U.S. Code Cong. & Admin. News 1973 at 3219. As the Legislative History reflects,

a study authorized by Congress concluded that many people in high flood risk areas are seriously

uninformed about the risks of flood damage which they face, and that they are grossly over-

optimistic about the probability that their property will not be flooded or else expect public help to

bail them out when the inevitable flood disaster strikes. Id. at 3220. In discussing the purposes of

the Act, Congress stressed the need for a flood insurance program which will make insurance

against flood damage available, encourage persons to become aware of the risk of occupying the

flood plains, and reduce the mounting federal expenditures for disaster relief assistance. . . United

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States v. Parish of St. Bernard, 756 F.2d 1116, 1123-24 (5 Cir. 1985) citingH.Rep. No. 1585, 90th th

Cong. 2d Sess., reprinted in [1968] U.S. Code Cong. & Adm.News 2873, 2966-67.

Despite this effort, the annual loss of property and the disastrous personal losses suffered by

victims of recurring flood disasters throughout the nation continued. Senate Report No. 93-583

reprinted in U.S. Code Cong. & Admin. News 1973 at 3220. Congress acted again to strengthen

the NFIA by promulgating the Flood Disaster Protection Act of 1973, P.L. 93-234. Recognizing the

national need for a reliable and comprehensive flood insurance program and aware that mandatory

flood insurance coverage must be applied with adequate safeguards and land use restrictions to

minimize future losses of life and property, Congress, through the Flood Disaster Protection Act of

1973, amended the NFIA to include greater coverage and to further promote and mandate sound land

use control. Senate Report No. 93-583,supra, at 3218. In extending the emergency implementation

provisions of the program, Congress noted that one of the principal purposes of this bill is to

accelerate these rate studies by whatever means are necessary, in order to make available both

detailed information on flood hazards and the full limits of coverage authorized. Id. at 3228.

The NFIA enables the public to overcome the devastating accompanying floods by providing

"a reasonable method of sharing the risk of flood losses . . . through a program of flood insurance

which can complement and encourage preventive and protective measures." Id. 4001(a). To

further achieve the stated purposes of the Act -- to sell flood insurance and encourage the adoption

of sound flood plain management -- Congress required FEMA to identify and publish information

for flood plain areas nationwide that have special flood hazards and to establish flood-risk zones.

42 U.S.C. 4101. FEMA is responsible for making flood elevation determinations for purposes of

land use control in communities identified as flood-prone. Reardon v. Krimm , 541 F. Supp. 187 (D.

Kansas 1982).

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A. Flood Insurance

Congress expressly mandated FEMA to carry out a program which will enable interested

persons to purchase insurance against loss resulting from physical damage to or loss of real property

or personal property related thereto arising from any flood occurring in the United States. 42 U.S.C.

4011(a). FEMA promulgated, by regulation, the terms and conditions of flood insurance coverage.

42 U.S.C. 4013. Federally subsidized flood insurance is not available under the NFIA unless a

Community adopts adequate flood plain management regulations. 44 C.F.R. 60.11. The

Administrator undertakes studies and investigations to review a Communitys plans to base flood

insurance premiums on risk in accordance with actuarial principles. 44 C.F.R. 61.7.

B. Encouraging Sound Flood Management Ordinances in the Flood Plain

Participation in the NFIP is voluntary. Adolph v. FEMA, 854 F.2d 732, 735-36 (5 Cir.th

1988). To qualify for Federal flood insurance, participating communities must give FEMA

satisfactory assurances that adequate land use and control measures have been adopted by the State

or local government consistent with the comprehensive criteria for land management and use

developed under section 4101 of this title. 42 U.S.C. 4012(c). The Act provides:

[T]he Director [of FEMA] shall from time to time develop comprehensive criteria designed

to encourage, where necessary, the adoption of adequate State and local measures which, to the

maximum extent feasible, will -

(1) constrict the development of land which is exposed to flood damage where

appropriate,

(2) guide the development of proposed construction away from locations which are

threatened by flood hazards,

(3) assist in reducing damage caused by floods, and

(4) otherwise improve the long-range land management and use of flood-prone areas . . .

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42 U.S.C. 4102(c); see also, 44 C.F.R. Part 59 and 60. The minimum land use criteria were

developed in 1976 and promulgated nationwide. 44 Fed. Reg. 46,975 (Oct. 26, 1976).

C. Identifying and Mapping Flood Hazard Areas

Congress required FEMA to identify and publish information with respect to all flood plain

areas . . . located in the United States which has special flood hazards and establish or update

flood-risk zone data in all such areas, and make estimates with respect to the rates of probable flood

caused loss for the various flood risk zones for each of these areas. 42 U.S.C. 4101(a)(1)-(2).

FEMAs implementing regulations define an area of special flood hazards as the land in the flood

plain within a community subject to a 1 percent or greater chance of flooding in any given year, also

referred to as the base flood or 100 year flood. 44 C.F.R. 59.1. Flood-risk zone data corresponds

to flood insurance premium risk based on accepted actuarial principles. 44 C.F.R. 51.9; 61;

64.3(a)(1).

Every five years, FEMA is required to assess the need to revise and update all flood plain

areas and flood risks zones, which may result in an update if FEMA determines it is necessary. 42

U.S.C. 4101(e)(1);see also, Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 987 (8 Cir.th

2010). Additionally, FEMA may update this information when a community submits sufficient

technical data demonstrating a need to update. 42 U.S.C. 4101(e)(2).

1. Flood Insurance Studies and Restudies

FEMA identifies and publishes flood hazards on a map known as the Flood Insurance Rate

Map (FIRM) (also provided in digital format on a DFIRM). Complaint, doc. #1, Exh. 1-00001.

This map is prepared after a flood insurance study (FIS) or a restudy has been completed where

risk premium rates have been established. 44 C.F.R. 64.3. The FIS determines, among other

information,

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The base flood the flood having a one percent chance of being equaled or exceeded in any

given year. 44 C.F.R. 59.1.

Water Surface Elevations -- the height . . . of floods of various magnitudes and frequencies

in the flood plains, for example 10 year flood, 50 year flood, 100 year flood (referred to as

the base flood elevation (BFEs), and 500 year flood. Id.3

P The base flood discharge for watercourses -- the volume of water that is anticipated to flow

down the watercourse during the peak of the base flood.

P Regulatory Floodway -- the channel of a river . . . and the adjacent land areas that must be

reserved in order to discharge the base flood without cumulatively increasing the water

surface elevation more than a designated height. Id.

The information is then transferred to a FIRM. 44 CFR 61.7 and 64.3(a)(1). The FIRM

is an official map of a community that identifies flood hazards for the purpose of the NFIP. 44 CFR

61.7;Id. 59.1. These activities have not been completed.

Relevant to this lawsuit are FEMAs regulations and policies regarding FEMAs treatment

of uncertified levees when establishing base flood elevations. FEMA will only recognize in its

flood hazard and risk mapping effort those levee systems that meet, and continue to meet, minimum

design, operation, and maintenance standards that are consistent with the level of protection

associated with the base flood. 44 C.F.R. 65.10. To be recognized by FEMA as providing this

type of protection, a community or other party seeking recognition must provide FEMA with

certified data and analyses as outlined in 44 CFR 65.10. Further, under 44 CFR 65.10(a):

the types of information FEMA needs to recognize, on NFIP maps, that a levee system

provides protection from the base flood . . . must be supplied to FEMA by the community

A BFE is a legal concept. It is a statistical number - a scientifically derived estimate of the water3

surface elevation that has a 1% chance of being equaled or exceeded in any given year. It is used to

guide development in the Special Flood Hazard Area and is promulgated by FEMA as the minimum

elevation at which the lowest floor may be constructed for new buildings or for additions and certain renovations

in communities that participate in the NFIP. 44 C.F.R. 60.3. A 1% annual chance water surface elevation does

not become a BFE until it is promulgated through rulemaking and becomes law. Id. 67.4.

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or other party seeking recognition of such levee system at the time a flood risk study or

restudy is conducted, when a map revision under the provisions of part 65 of this subchapter

is sought based on a levee system, and upon request by the [FEMA] during the review of

previously recognized structures. The FEMA review will be for the sole purpose of

establishing appropriate risk zone determinations for NFIP mapsand shall not constitute

a determination by FEMA as to how a structure or system will perform in a flood event.(emphasis added).

Data submitted to support that a given levee system complies with the structural requirements set

forth in paragraphs (b)(1) though (7) of this section must be certified by a registered professional

engineer. . . . In lieu of these structural requirements, a Federal agency with responsibility for a levee

design may certify that the levee has been adequately designed and constructed to provide protection

against the base flood. Id. 65.10(e) (emphasis added).

2. Finalizing Base Flood Elevations and FIRMS

The NFIA provides for consultation with the affected community during the flood hazard

study process and provides a carefully deliberated process for appeal by affected communities and

owners or lessees of real property within the community who believe that their property rights may

be adversely impacted by the proposed base flood elevation determinations.

Before a preliminary FIRM becomes final and legally effective, the NFIA requires FEMA

to publish for comment the proposed BFEs in the Federal Register, by direct notification to the

community, and twice in a prominent local newspaper. 42 U.S.C.A. 4104. The newspaper notices

must be published within ten days of each other. Id. The second newspaper publication initiates a

90-day appeal period of the proposed BFEs. 42 U.S.C.A. 4104(a), and (b).

The sole basis for appealing is the possession of knowledge and information indicating that

the elevations being proposed by the Director with respect to an identified area having special flood

hazards are scientifically or technically incorrect. 42 U.S.C. 4104(b).

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The sole relief available to a successful appellant is modification of the proposed BFEs.

Id. The FIRM becomes effective no later than six months after FEMA issues its final BFE

determination. 44 C.F.R. 67.10.

3. Judicial Review

The NFIA allows for limited judicial review. Any appellant who is dissatisfied with the final

determination may appeal the determination to Federal district court within sixty days after receipt

of notice of the determination. 42 U.S.C. 4104(g). The scope of review by the court shall be as

provided by chapter 7 title 5 United States Code. During the pendency of any such litigation, all

final determinations of the Director shall be effective . . . unless stayed by the court for good cause

shown. Id. Congress determined that: pending the outcome of any judicial appeal, the final

determinations shall be binding on the community for all purposes under the Act. Only in this way

can the taxpayer be assured that the public interest will remain paramount both in the instigation and

in the expeditious resolution of these appeals based upon the awareness of the vested interests of

many land developers and others in avoiding or deferring all limitations on flood plain development

as long as possible. Senate Report No. 93-583 reprinted in U.S. Code Cong. & Admin. News 1973

at 3232-33.

FEMA regulations further provide that a courts scope of review is limited to those

provisions contained within 5 U.S.C. 706, as modified by 42 U.S.C. 4104(b). 44 C.F.R.

67.12. According to the Legislative History:

Section 110 of the bill dealing with appeals, was the subject of more testimony, discussion,

coordination, and committee debate than any other provision of the bill. . . . and attempts to

provide an equitable balancing of all of the interests involved in the identification and the

setting of construction elevation standards for flood prone areas.

Senate Report No. 93-583 reprinted in U.S. Code Cong. & Admin. News 1973 At 3230.

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IV. Factual Background

A. The NFIP

In 2002, FEMA initiated a study to update the Flood Insurance Rate Maps for Rapides Parish,

Louisiana. Complaint, doc. #1, Exh. BB 000001.

On August 22, 2005, FEMA issued a Procedure Memorandum No. 34 Interim Guidance

for Studies Including Levees to help clarify the responsibility of community officials or other parties

seeking recognition of a levee by providing information identified during a study/mapping project.

Complaint, doc. #1, Exh. I 000001.

Through correspondence dated March 20, 2007, FEMA requested the City of Pineville,

Louisiana to provide certification of the Red River North Bank Levee (Pineville). Complaint, doc.

#1, Exh. Z 000001.

Through correspondence dated March 20, 2007, FEMA requested the City of Alexandria,

Louisiana to provide certification of the Red River Levees in Rapides Parish. Complaint, doc. #1,

Exh. T 000001.

On April 9, 2007 the City of Alexandria through its Community Executive Officer, Mayor

Jacques M. Roy and the Levee Owner Representative for the Red River, Atchafalaya and Bayou

Boeuf Levee District (RRABB), Andrew C. Leon, President of the Board of Commissioners

agreed to provide FEMA with all the necessary information to show the levees known as Red River

Levees in Rapides Parish comply with 44 C.F.R. 65.10 before June 20, 2009. Complaint, doc. #1,

Exh. T 000001 to 02.

According to the City of Alexandrias representatives, it was understood that if complete

documentation of compliance with 44 CFR 65.10 is not provided within the designated time frame

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of twenty-four months, FEMA will initiate a revision to the Flood Insurance Rate Map to re-

designate the areas as flood prone. Id. at 000001.

On April 12, 2007, the RRABB Levee District through its President Leon, wrote the U.S.

Army Corps of Engineers in Vicksburg, Mississippi advising that FEMA and the City of Alexandria

had requested certification of the levees under RRABBs jurisdiction and RRABB requested

assistance from the Corps to certify state and federal levees in the RRABB Levee District.

Complaint, doc. #1, Exh. U 000001.

On June 13, 2007, Levee Owner Representative, Andrew C. Leon and Community CEO

Clarence R. Fields signed a Letter of Agreement and Request for Provisionally Accredited Levee

(PAL) designation and agreement to provide adequate compliance with the Code of Federal

Regulations, Title 44, Section 65.10 (44 CFR 65.10). Complaint, doc. #1, Exh. Z 000001.

According to the signed PAL agreement, it was under[stood] that if complete documentation

of compliance with 44 CFR 65.10 is not provided within the designated time frame of 24 months,

FEMA will initiate a revision to the Flood Insurance Rate Map to redesignate the area as

floodprone. Id.

On July 31, 2007, FEMA issued its Preliminary maps and subsequently began its 90 day

administrative appeal and protest process for the Preliminary map. Id.

On December 30, 2009, FEMA informed the Red River, Atchafalaya & Bayou Boeuf Levee

District (RRABB) that:

1. The 2007 study was in the final stages of appeal and protest resolutions. Id.

2. Based on its coordination and communication, FEMA had determined that the Red

River Levees (North and South Banks) will no longer be shown as providing

protection from the base flood elevation on the Digital Flood Insurance Rate Maps.

Id.

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3. FEMA had not received levee certification from the RRABB Levee District.

4. The Provisionally-Accredited Levee designation that had provided for 24 months to

the affected communities, City of Alexandria, Rapides Parish, City of Pineville, and

Town of Boyce, had expired. Id.

5. At that time, due to the deficiency in certification, FEMA could not accredit the Red

River Levees (North and South Bank). Id.

6. Accreditation is required to map levees as providing protection on the Rapides Parish

parishwide DFIRMS. Id.

7. FEMA would initialize a study to revise the Rapides Parish flood insurance rate maps

to show the de-accredited levees. Id.

8. Until FEMA received certification documents, the levees would be de-accredited and

the area currently shown as protected by the Red River Levees (North and SouthBank) will be classified as a special flood hazard area. Id.

9. Structures in that area with federally-backed mortgages will be required to purchase

flood insurance. Id.

On June 10, 2010, U.S. Army Corps of Engineers, Operations Division, Project Resources

Management in Vicksburg, Mississippi, through C. James Spencer, Chief, Project Resources Branch,

informed Norman Budd, Commissioner/President Rapides Parish Red River Atchafalaya and Bayou

Boeuf Levee District in Alexandria, Louisiana that the Corps investigation of the Lower Red River

South Bank Levee in Avoyelles and Rapides Parish shows that the levee does not meet the

requirements for certification for the 1 percent annual chance exceedance flood and the levee does

not meet the geotechnical design criteria because of sand boils and sinkholes at or near the toe of the

levee. Complaint, doc. #1, Exh. EE 000001 to 02.

On or about October 27, 2010, FEMA through its Region VI Office advised (as part of a

Rapides Parish briefing) that Levee certification can be submitted anytime within the flood study

process. Complaint, doc. #1, Exh. II 000001.

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On January14, 2011, Levee Certification Reports were issued by the Corps finding that the

levee segments in question failed levee certification.

B. Levees

Plaintiffs Complaint relates to the Red River South Bank levees on the right descending

bank of the Lower Red River near Alexandria, Louisiana. The South Bank levees are part of the

Mississippi River and Tributaries Project (MR&T). The Corps acknowledges major maintenance

responsibilities for the South Bank levee under Section 3 of the Flood Control Act of 15 May 1928,

Public Law 70-391 which is applicable to the South Bank levees.

The Complaint also relates to the East Bank levee. The Flood Control Act of 18 August

1941, Public Law 77-228, authorized both segments of the Red River levee on the east or left

descending bank in the vicinity of Pineville (East Bank levee). In section 3 of that Act authorizing

project features in the Red-Ouachita River Basin, authorization for both levee segments was

conditioned as being subject to the provisions of Section 3 of the Flood Control Act approved

June 22, 1936. Section 3 of the Flood Control Act of 1936, Public Law 74-688 stated that no

money would be expended on these projects until the responsible local agencies provide the

assurances required by that section. Assurance (c) stated maintain and operate all the works after

completion in accordance with the regulations prescribed by the Secretary of War. The

Government disputes that it is responsible for maintenance of the East Bank levees as alleged by

Plaintiffs. However, for purposes of this evaluation, this dispute is immaterial.

RRABB signed the local assurances required by the applicable Flood Control Acts for the

South Bank levee and the Pineville segment of the East Bank or left descending bank Red River

levee. The 19 Louisiana Levee District signed the local assurances for the East Bank or leftth

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descending bank Red River levees north of Pineville in Grant and Rapides Parishes. Plaintiffs are

not signatories to those assurances.

V. Law and Analysis

A. Rule 12(b)(1)

1. Standard of Review

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to

challenge the subject matter jurisdiction of the district court to hear a case. As always, the Court

must first consider whether it has jurisdiction.

A court may base its disposition of a motion to dismiss under Rule 12(b)(1) on: (1) the

complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint

supplemented by undisputed facts plus the court's resolution of disputed facts.Ramming v. United

States, 281 F.3d 158, 161 (5 Cir. 2001). In this case, the Court can review the Complaint alone andth

determine that the United States has not waived sovereign immunity for the claims asserted. The

party asserting jurisdiction bears the burden of proof. Id. When a Rule 12(b)(1) motion is filed in

conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional

attack before addressing any attack on the merits. Id.

In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of

fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Ultimately,

a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain

that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to

relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th

Cir.1998).

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2. Sovereign Immunity

A cause of action against the Government, as sovereign, can never be assumed - even one

alleging a Constitutional violation as here. As the sovereign, the United States and its agencies are

immune from suit absent a waiver. FDIC v. Mayer, 510 U.S. 471, 475 (1994). In the absence of a

waiver of sovereign immunity, this Court lacks subject matter jurisdiction over a claim involving

the United States. The United States, as sovereign, is immune from suit except as it consents to be

sued. The terms of the consent must not be inferred and define the parameters of the federal courts

jurisdiction to hear suits brought against it. United States v. Mitchell, 463 U.S. 206, 212 (1983). A

waiver of sovereign immunity cannot be implied, but must be construed strictly in favor of the

government and may not be enlarged beyond the statutory language authorizing it. Sovereign

immunity not only protects the United States from liability, it deprives the court of subject matter

jurisdiction over the claims against it.Mitchell, 463 U.S. at 212.

The Complaint sets forth 28 U.S.C. 1331 as its jurisdictional basis and 5 U.S.C. 701, et

seq., as the waiver of the Governments sovereign immunity. See, Complaint, doc. #1, p. 5, 5.4

The Complaint further states that the Court may grant injunctive relief pursuant to 28 U.S.C.

2201-02 (declaratory judgment statute).

Section 1331 is a general jurisdictional statute providing the district court with jurisdiction

for all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C.

1331. General jurisdictional statutes do not independently waive the Governments sovereign

immunity. Taylor v. United States, 2008 WL 4218770, p. 4 (5 Cir. 2008); Seibert v. Baptist, 594th

F.2d 423, 428-29 (1979);Beale v. Blount, 461 F.2d 1133, 1138 (5 Cir. 1972);Divine v. U.S., 328th

5 U.S.C. 701, et seq., is commonly referred to as the Administrative Procedures Act.4

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F.2d 305 (5 Cir. 1964) (no waiver under 28 U.S.C. 1343);Berman v. U.S., 264 F.3d 16, 20 (1th st

Cir. 2001).

Additionally, the Declaratory Judgment Act, 28 U.S.C. 2201, does not waive the United

States sovereign immunity as the Act merely provides additional remedies where jurisdiction

otherwise exists. United States v. Smith, 393 F.2d 318, 320-21 (5 Cir. 1968);Anderson v. Unitedth

States, 229 F.2d 675, 677 (5 Cir 1956).th

Sovereign immunity bars not only actions seeking money damages but also actions seeking

injunctive relief. Dugan v. Rank, 372 U.S. 609, 620 (1963) (The general rule is if the judgment

sought would expend itself upon the public treasury or domain, or interfere with public

administration or if the effect of the judgment would be to restrain the Government from action,

or to compel it to act, the suit will be construed as one against the United States requiring a waiver

of sovereign, quoting,Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 (1949)

(emphasis added); Hatahley v. United States, 351 U.S. 173, 176 (1956) (district court had no power

to enjoin United States from destroying horse owned by Navaho Indians); ACORN v. U. S. Army

Corps of Engineers, 245 F.3d 790 (Table) (unpublished) 200 WL 1910123 (5 Cir. 2000); Unitedth

States v. Patterson, 206 F.2d 345, 348 (5 Cir. 1953) ([I]t is beyond dispute that unless expresslyth

permitted by an Act of Congress, no injunction can be granted against the United States.).

This suit as it names the individual federal officials in their official capacity is nothing more

than a suit against the Government and to the extent that the individual federal officials are named

as defendants, the principles of sovereign immunity are applicable thereto. Larson, 337 U.S. at

692-93.

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The terms of the Governments consent to be sued define a courts jurisdiction to hear the

suit. Because the United States consent to be sued is a prerequisite to jurisdiction, Plaintiffs must

identify a statute specifically providing that Congress has waived sovereign immunity for the suit.

United States v. Idaho, 508 U.S. 1, 6-7 (1993) (waivers of sovereign immunity, to be effective, must

be unequivocally expressed in statutory text, strictly construed in favor of the United States and

not enlarged beyond what the statute requires.), (internal quotation marks omitted).

3. The Court Lacks Jurisdiction Over the Plaintiffs Claims Under APA

According to the Complaint, sovereign immunity for the instant claims is waived in the

Administrative Procedure Act (APA). Complaint, doc. #1, p. 5, 5. In 1976, Congress amended

the APA to provide a general waiver of the governments sovereign immunity from injunctive relief.

United States v. Mitchell, 463 U.S. at 227, n. 32. However, Plaintiffs reliance on the APA is

misplaced. Although the APA, 5 U.S.C. 702 creates a limited waiver of sovereign immunity, it

is not applicable to Plaintiffs claims.

Section 10 of the APA does not itself grant subject matter jurisdiction, but is rather a waiver

of sovereign immunity in suits seeking judicial review of agency actions where judicial review has

not been expressly authorized by statute.

Although one adversely affected or aggrieved by agency action with the meaning of a

relevant statute may generally obtain judicial review under the APA, the Act confers no cause of

action where the relevant statute precludes judicial review 5 U.S.C. 701(a)(1) or where the

agency action is committed to agency discretion by law 5 U.S.C. 701(a)(2). Lundeen v. Mineta,

291 F.3d 300 (5 Cir. 2002). If either exceptions apply, the APAs inapplicable and there is noth

waiver or sovereign immunity. Id. at 304. Both exceptions to the waiver of sovereign immunity

under the APA apply here.

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(i) NFIA Precludes Review Under the APA

There is a presumption that Congress favors review of agency action, but the agency can

rebut this presumption by pointing to specific language or specific legislative history that is a

reliable indicator of congressional intent. Lundeen, 291 F.3d at 305 quotingBlock v. Community

Nutrition Institute, 467 U.S. 340, 349 (1984). The APA does not make every agency action subject

to judicial review but limits judicial review to final agency action where there exists no other

adequate remedy at law. 5 U.S.C. 704. As stated above, 42 U.S.C. 4104 provides a remedy at

law for any appellant aggrieved by FEMAs flood hazard determinations. See, 42 U.S.C. 4104(g).

Here, it is clear that the NFIA precludes judicial review under the APA. As stated by the Supreme

Court:

Whether and to what extent a particular statute precludes judicial review is determined not

only from its express language, but also from the structure of the statutory scheme, its

objectives, its legislative history, and the nature of the administrative action involved.

Id., at 345.

The Plaintiffs claim that they do not have an adequate remedy of law under the NFIA.

However, legislative history makes clear that Congress intended to limit judicial review of flood

hazard determinations to the procedures set forth in the NFIA. Title 42 U.S.C. 4104 provides for

limited judicial review. Moreover, the legislative history makes clear that the APA does not provide

jurisdiction for Plaintiffs claims. The legislative history recounts that the purpose of Section 110

of the Bill dealing with appeals was to supersede the related provisions of the APA, since many

witnesses before the committee and some members have questioned the adequacy of that Act for this

program. Senate Report No. 93-583, 29, 1973 [To accompany H.R. 8449].5 6

Codified at 42 U.S.C. 4104(g).5

Congress provided specifically that the provisions of Title 5, Chapter 7 U.S.C. dealing with the6

scope of judicial review under the APA will apply to 42 U.S.C. 4104. Senate Report No. 93-583, Nov.

29, 1973 [To accompany H.R. 8449].

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The NFIA makes clear that Congress intended for the appeal procedures provided at 42

U.S.C. 4104 to be the exclusive avenue for appeal. Congress provided a balancing of all of the

interests involved in the identification and setting of flood elevation standards for flood prone areas

and prescribed a detailed mechanism by which communities could appeal FEMAs flood hazard

determinations. Senate Report No. 93-583, Nov. 29, 1973 [To accompany H.R. 8449].

In a recent decision, the Eighth Circuit rejected a similar assertion of jurisdiction under the

APA, finding that FEMAs treatment of levee accreditation and revision of a FIRM constituted a

flood elevation determination subject to review under the NFIA. In Great Rivers Habitat Alliance,

v. FEMA, the plaintiffs complaint focused on their dissatisfaction of the revised FIRM. Their

dissatisfaction was derived from a change in flood zones due to the disrepair of the levees in

question. The Eighth Circuit found that FEMAs revised identification of the Special Flood Hazard

Area constitutes a flood elevation determination and is properly litigated under the NFIA, and not

the APA. 615 F.3d at 990. The Eighth Circuit observed, FEMAs act of revising the FIRM to

move land from [one zone to another] is functionally identical to adjusting the base flood elevation

from its previous level to zero and concluded that because the APA grants judicial review of final

agency action in cases for which there is no other adequate remedy, dismissal for lack of jurisdiction

under the APA was proper. Id. Likewise in County of Monmouth v. FEMA, 2009 WL 3151331,

(D.N.J. 2009), the court rejected the Countys claim that the APA applies to all claims other than

those related to BFEs because the NFIA incorporates the APAs standard of review and provides for

review of FEMAs mapping actions. InReardon v. Krimm, 541 F.Supp. 187, 189 (D.Kan. 1982) the

court found that the Act forecloses unlimited appeal and noted that the limitation on appeals was the

product of more debate and testimony than any other portion of the Act when it was being considered

in Congress.

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The federal courts have consistently held that where a plaintiff fails to meet any of the

requirements of the NFIA, subject matter jurisdiction is lacking. See, City of Garden City, Kansas

v. Fugate, 2010 WL 624163 (D.Kan. 2010) (finding lack of subject matter jurisdiction for mootness

in absence of final determination);Robinson v. FEMA, 1987 WL 9906 (D.Mass. 1987) (finding lack

of subject matter jurisdiction under NFIA because plaintiff filed improper administrative appeal

under the NFIA); City of Biloxi v. Giuffrida, 608 F.Supp. 927, 930-31 (S.D.Miss. 1985) (dismissal

for lack of subject matter jurisdiction of Citys declaratory judgment action alleging Due Process

violation under the NFIA where City did not comply with appeal deadlines of NFIA);City of Trenton

v. FEMA, 545 F.Supp. 13, 17 (E.D. Mich. 1981) (same). The courts have consistently held where

a plaintiff fails to satisfy any of the requirements under the NFIA, jurisdiction was lacking regardless

whether the type of relief sought was remedial or injunctive.

(ii) No Final Agency Action

Second, a proposed determination, as is the case here, is not a final agency action. For an

agency action to be final, it must (1) mark the consummation of the agencys decision making

process, meaning that it is not of a merely tentative or interlocutory nature, and (2) be one by

which rights or obligations have been determined or from which legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 177 (1997).

Because the proposed flood elevation determination (or specifically, the preliminary FIRM

incorporating the proposed BFEs that has not yet issued) will be subject to further agency review and

modification under the NFIA and applicable regulations, it is not the consummation of FEMAs

decision making process. Also, because the proposed flood elevation determination by itself and

without a later final determination will not impact the land use requirements and insurance premium

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rates Plaintiffs will face, it has no legal consequences. Indeed, it is the final flood elevation

determination that will be the consummation of the decision making process and that will impose

legal consequences making it the final agency action. But because that determination is still pending,

there is no final agency action that can be reviewed under the APA. See, 5 U.S.C. 704.

Similarly, the plaintiffs inHall v. U.S. Army Corps of Engineers, 2008 WL 483330 (D.Kan.

2008) asserted that because the NFIP involves the promulgation of regulations, providing insurance,

and actions that indirectly cause modifications of the land and water, the NFIP falls within the broad

definition of agency action. The district court rejected that a broad agency program such as the NFIP

is a final agency action within the meaning of the APA.Id.

Simply put, FEMAs decision not to accredit the levees in question or the issue the

preliminary FIRM are not final agency decisions under the NFIA and jurisdiction does not otherwise

exist under the APA for the reasons set forth above.

4. Limited Waiver of Sovereign Immunity Under the NFIA

The plaintiffs expressly contend that they do not challenge any flood evaluation

determinations in these proceedings and appear to concede that this action is premature under the

NFIA. Complaint, doc. #1, p. 29, 78 (Plaintiffs do not, in this proceeding, challenge FEMAs

flood elevation determinations for the remapping of the Red River Levee System, but hereby

expressly reserve the right see all available administrative and judicial remedies if and when those

claims ripen.)

FEMA regulations state that the sole basis of an appeal under this part shall be the

possession of knowledge or information indicating that the elevations proposed by FEMA are

scientifically or technically incorrect. 44 C.F.R. 67.6.

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The face of the Complaint demonstrates that any appeal under the exclusive avenue of

judicial review under the NFIA is premature at this time. Plaintiffs suit clearly seeks review of a

proposed determination by FEMA and this suit is premature under the NFIA. Therefore, this Court

is without jurisdiction to review Plaintiffs claims under the NFIA at this time.

5. Implied Contract Claims

To the extent that the Complaint may be construed to allege a claim against the Corps for

alleged design defects or other defects in the levees, again, this Court is without subject matter

jurisdiction. If Plaintiffs complaint is construed as asserting a claim for breach of contract or

implied contract (even assuming the Plaintiffs have standing to raise this issue), the Complaint then

would fall squarely within the purview of the Tucker Act and the APA is inapplicable. 28 U.S.C.

1491(a)(1); United States v. Testan, 424 U.S. 392, 400 (1976).

The availability of a remedy in the Court of Federal Claims is an adequate remedy under 5

U.S.C. 704 that states that judicial review is inappropriate where there exists some other adequate

remedy in a court. Id. at 580. The Court of Federal Claims is the sole forum for the adjudication

of money claims, even though the claim would otherwise fall within the coverage of some other

statute conferring jurisdiction on the district court. Graham v. Henegar, 640 F.2d 732 (5 Cir.th

1981). A plaintiff whose claims against the United States are essentially contractual should not be

allowed to avoid the jurisdictional (and hence remedial) restrictions of the Tucker Act by casting its

pleadings in terms that would enable a district court to exercise jurisdiction under a separate statute

and enlarged waivers of sovereign immunity, as under the APA. Megapulse, Inc. v. Lewis , 672 F.2d

959, 967 (Fed.Cir. 1982).

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Further in regard to any implied contract claim, if Plaintiffs have alleged any implied

contractual claim, they lack standing to bring such claim in that it is the local sponsors (levee boards)

who signed the local assurances required by law. The Complaint correctly identifies RRABB and

the 19 Louisiana Levee District as the parties that signed the required assurances. Since neitherth

plaintiff signed the local assurances, the plaintiffs lack standing to complain and no case or

controversy exists between the federal government and local sponsors as to the responsibilities of

the parties to the assurances under the Flood Control Acts. The Plaintiffs have no standing to assert

that the true local sponsors should be challenging the assurances as placing an unreasonable or even

unconstitutional burden on them.

B. Plaintiffs Have Failed To State a Claim Upon Which Relief May be Granted

1. Rule 12(b)(6) Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for

failure to state a claim upon which relief can be granted. Under the 12(b)(6) standard, all well-

pleaded facts are viewed in the light most favorable to the plaintiff, but plaintiffs must allege facts

that support the elements of the cause of action in order to make out a valid claim. See Bell Atlantic

Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (Factual allegations must be enough to raise a right

of relief above the speculative level.). The Court does not accept as true [t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements.Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949 (2009). A complaint does not need detailed factual allegations, but must provide

the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to

be true raise a right to relief above the speculative level.Bell Atl. Corp., 127 S.Ct. at 1964-65.

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2. Constitutional Challenge

Significantly, Plaintiffs do not challenge the constitutionality of the NFIA nor do they claim

that the Act itself infringes upon state sovereignty. Moreover, the Plaintiffs do not assert that FEMA

or the Corps has failed to follow their own regulations. The Plaintiffs merely assert that in order to

remain in the NFIP, Plaintiffs are required to expend state resources to repair the levees.

Specifically, Plaintiffs contend that the expenditure of Community Block Development Grant

(CDBG) funds provided by the U.S. Department of Housing and Urban Development to the

Rapides Parish Policy Jury to repair the levees in violation of State Sovereignty under the Tenth

Amendment.

Plaintiffs direct the Court toElrod v. Burns , 427 U.S. 347 (1976) in support of their argument

that a violation of Constitutional rights constitutes irreparable injury for purposes of injunctive relief.

Complaint, doc. #1, p. 36, 107. Initially, it is noted that Elrodwas not brought against the United

States and therefore, a waiver of sovereign immunity was not required.

Next, it seems likely that the Plaintiffs did not challenge the constitutionality of the NFIA

because the Fifth Circuit has held that the NFIP is a voluntary program in which communities are

not compelled to participate. Adolph, 854 F.2d at 735-36; United States v. Parish of St. Bernard,

756 F.2d 1116, 1123 (5 Cir. 1985). In the St. Barnard case, the Fifth Circuit expressed that underth

the NFIP, a community could withdraw or be suspended from the program if out of compliance and

the decision to join or remain under the program is a decision left solely by statute solely to the local

community. Id. Although St. Bernard presented in a different procedural scenario, the Fifth

Circuits reasoning and holding, requiring a community to undertake expensive reconstruction

projects to bring itself into compliance with the NFIP is fruitless when the agency already possesses

the power to suspend any community which is in violation are relevant here. Id.

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InAdolph, the Fifth Circuit rejected the plaintiffs Tenth Amendment challenge. The Court

stated that by conditioning the availability of federally-subsidized insurance upon enactment of local

flood-plain management ordinances to comply with federal standards, the NFIP is a voluntary federal

program. Adolph, 854 F.2d at 735-36, citing Texas Landowners v. Harris, 453 F.Supp. 1025

(D.D.C. 1978) (rejecting that the NFIP violated State and local governments sovereign powers and

principles of federalism). The foregoing cases overwhelmingly support the conclusion that Plaintiffs

are unable to state a claim for relief based upon a Constitutional violation, even assuming a waiver

of sovereign immunity exists.

The Plaintiffs voluntarily entered the NFIP. Assuming arguendo that the CBDG funds

constitute state funds or that the Plaintiffs have standing to bring this suit, the Complaint fails to

adequately set forth facts to demonstrate that FEMA or the Corps has required them to use these

funds to repair either levee in question. Although the Complaint uses terms such as: coerced and

demand and attaches numerous documents as exhibits thereto, the Complaint fails to direct the

Court to any actual requirement by FEMA or the Corps that such funds be used to maintain or repair

the levees. Complaint, doc. #1, pp. 9, 15; p. 25, 63. As stated above,the Supreme Court has7

held that factual allegations must be enough to raise a right of relief above the speculative level,Bell

Atlantic Corp., 127 S.Ct. at 1965/ Thus, the Court can not accept conclusory statements as true.

Iqbal, 129 S.Ct. at 1949.

It is undisputed that the levees fail to satisfy applicable criteria for certification and therefore,

accreditation by FEMA. However, without any factual basis that the Government requires Plaintiffs

It is noted that at times, Complaint refer to the forced requirement that they use their7

resources, while at others, the Complaint refers to the use of funds in terms of a request. Doc. #1, p.

29, 79; p. 33, 95.

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to participate in the NFIP and that the Government has required Plaintiffs to repair either levee, the

Complaint simply has not stated a claim upon which relief may be granted. Moreover, the NFIA and

the case law relevant thereto, demonstrate that the Plaintiff simply cannot state a valid Tenth

Amendment Claim. Plaintiffs conclusory statements that they are required to expend state

resources to fund a federal program fails to support a claim upon which relief may be granted -

especially when viewed in light of the NFIP as a whole and the case law discussing the program.

3. Repair of the Levees

While the allegations of the Complaint are somewhat nebulous as they relate to the Corps,

Plaintiffs request in their prayer for relief that the Court declare the rights and obligations of the

parties under the NFIA and the Flood Control Act.

The South Bank levees near Alexandria, Louisiana are part of the MR&T Project. Funds for

the operation and maintenance of those levees are provided from the appropriations for the MR&T

Project. For example, through the Energy and Water Development and Related Agencies

Appropriation Act, 2010, Public Law 111-85, 123 STAT. 2845, Congress appropriated $340,000,000

for construction, operation and maintenance and general investigation related to the MR&T project.

The line item funding of MR&T project features is found in Senate Report 111-45 that accompanied

the appropriation act. On page 51 of the Senate Report, a line item specifically for operation and

maintenance of the Lower Red River, South Bank Levees, LA with a 2010 recommendation of

$100,000 is shown. This is the appropriated amount made available to the Vicksburg District for

the operation and maintenance of the South Bank levees in Fiscal Year 2010. The Corps reported

a capability (capability is the amount of money an agency could expend in one fiscal year if it were

provided) to Congress of $4,798,000 that would have provided funds to perform the levee repairs

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needed for certification. Congress did not fund that capability. The Corps of Engineers is barred by

the Anti-Deficiency Act, 31 U.S.C. 1341, et seq., from spending money on levee repairs on the South

Bank levees without an appropriation by Congress. The Administrative Procedures Act by its own

terms excludes the actions of Congress from its coverage. 5 U.S.C. 701(b)(1)(A). Thus, the

Plaintiffs cannot state a claim in connection with a requirement that Congress appropriate funds for

any purpose. Thus, even if the Court granted Plaintiffs request for declaratory judgment declaring

the rights and obligations of the parties under the NFIA and Flood Control Act, such relief would

be meaningless.

Issuance of a declaration that the Corps has failed to maintain the South Bank levees will

afford no relief to Plaintiffs because jurisprudence will not support the issuance of a writ of

mandamus to compel specific performance by the Corps of Engineers in this regard. It is a far

different matter to permit a court to exercise its compulsive powers to restrain the Government from

acting, or to compel it to act. There are the strongest reasons of public policy for the rule that such

relief cannot be had against the sovereign.Larson, 337 U.S. at 704.

4. Individual Federal Officials Named as Defendants

The Complaint seeks no relief against W. Craig Fugate, Administrator of FEMA or

Lieutenant General Robert L. Van Antwerp, Commanding General of the U.S. Army Corps of

Engineers. It appears that these individuals are named as defendants to this action simply because

injunctive relief is sought. The Complaint states no claim against these defendants and they should

be dismissed from this action.

For the foregoing reasons, Plaintiffs have failed to set forth facts upon which this Court could

grant declaratory relief in connection with the rights and obligations of the parties under the NFIA

or the Flood Control Act.

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V. Conclusion

For the reasons stated above, this lawsuit should be dismissed in its entirety under Rule

12(b)(1) of the Federal Rules of Civil Procedure as the United States has not waived sovereign

immunity for this action and therefore, this Court is without subject matter jurisdiction.

Alternatively, Plaintiffs have failed to state a claim upon which relief may be granted and this case

should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Respectfully submitted,

STEPHANIE A. FINLEY

United States Attorney

BY: s/ Katherine W. Vincent

KATHERINE W. VINCENT (#18717)



Lafayette, Louisiana 70501-6832

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

ATTORNEYS FOR THE UNITED

STATES OF AMERICA AND ALL

FEDERAL DEFENDANTS


1-26-2011 Feds Motion to Dismiss

Documents

Transcript of 1-26-2011 Feds Motion to Dismiss