22 F. Supp. 3d 279
S.D.N.Y.2014Background
- NFIP is a federally administered program enabling nationwide flood insurance through cooperation of the Federal Government and private insurers, with FEMA administering it.
- FEMA must identify flood-prone areas, publish data, and require NFIP insurance for federally regulated loans in designated zones, with FIRMs portraying base flood elevations and risk zones.
- LOMRs allow localized map revisions between periodic NFIP remappings and require certified data and extensive analysis; FEMA must act within 90 days of receipt.
- Two LOMRs at issue: 2012 Ottinger LOMR and Yacht Club LOMR, each aimed at redrawing boundaries between V Zone and A Zone to benefit respective properties.
- Plaintiff alleges FEMA ignored her administrative appeals regarding these LOMRs and that this violated NFIA regulations and procedural rights.
- Plaintiff filed suit under 42 U.S.C. § 4104(g); FEMA moves to dismiss for lack of subject matter jurisdiction, arguing lack of standing and failure to exhaust administrative remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff exhausted administrative remedies | Plaintiff contends she filed proper admin appeals and exhausted remedies. | FEMA validly refused to treat the submissions as proper appeals for the Ottinger LOMR and contends no appeal was filed for Yacht Club LOMR. | Exhaustion as to Ottinger LOMR lacking; exhaustion as to Yacht Club LOMR satisfied, but standing lacking. |
| Whether the NFIA waiver of sovereign immunity extends to plaintiff given standing | NFIA waiver allows challenge to flood map decisions for aggrieved appellants who exhausted remedies. | Waiver requires proper exhaustion and aggrievement; plaintiff failed on the Ottinger LOMR and lacks standing overall. | Waiver does not extend to plaintiff for Ottinger; exhaustion/standing deficiencies foreclose jurisdiction. |
| Whether plaintiff has constitutional standing to sue | Plaintiff asserts procedural injury from ignored appeals and nonconforming maps injure concrete interests. | No concrete injury; alleged harms are speculative and do not show injury in fact, causation, and redressability. | No Article III injury in fact; plaintiff lacks standing. |
Key Cases Cited
- Arar v. Ashcroft, 532 F.3d 157 (2d Cir.2008) (subject-matter jurisdiction; threshold inquiry)
- Makarova v. United States, 201 F.3d 110 (2d Cir.2000) (jurisdictional pleading standards; court may consider outside-the-pleadings evidence)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requirements; injury in fact, causation, redressability)
- Summers v. Earth Island Inst., 555 U.S. 488 (U.S. 2009) (procedural injury standing; injury in fact remains for jurisdiction)
- Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985 (8th Cir.2010) (sovereign immunity waiver for NFIA challenges to flood map designations; exhaustion required)
- Alliance for Environmental Renewal v. Pyramid Crossgates Co., 436 F.3d 82 (2d Cir.2006) (standing and procedural injury framework within environmental challenges)
- Normandy Pointe Assocs. v. FEMA, 105 F.Supp.2d 822 (S.D.Ohio 2000) (exhaustion and sovereign immunity considerations in NFIA context)
- McKart v. United States, 395 U.S. 185 (Supreme Court) (mandatory statutory exhaustion principles)