ELIAS SEDA, Plaintiff, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant.
25-CV-2783 (HG)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
April 27, 2026
HECTOR GONZALEZ, United States District Judge
Case 1:25-cv-02783-HG-SDE Document 18 Filed 04/27/26 Page 1 of 22 PageID #: 152
HECTOR GONZALEZ, United States District Judge:
Plaintiff Elias Seda, proceeding pro se, brings this action against Defendant Federal Emergency Management Agency (FEMA). Plaintiff alleges violations of the Stafford Act,
For the reasons that follow, FEMA’s motion is GRANTED.
I. Relevant Facts
After Hurricane Ida, FEMA inspected Plaintiff’s home, located at 221 Roebling Street, Apartment 5 in Brooklyn, and declared the residence uninhabitable and approved Plaintiff for rental assistance and storage assistance. AC at 2. Relying on this approval, Plaintiff relocated, submitted rent and storage documentation, followed all FEMA procedures and, after purported errors by FEMA, filed multiple appeals. Id.
FEMA paid Plaintiff approximately $13,039 but allegedly withheld the remaining approved assistance and left Plaintiff with $26,000 in unpaid rent and storage debt. Id. Beyond FEMA’s allegedly improper withholding, Plaintiff further claims that FEMA improperly denied [him] additional rental assistance . . . without issuing any lawful written calculation showing how [receiving $215 per month in state shelter assistance] legally eliminated over one year of federally approved rental assistance. Id.
Plaintiff then submitted multiple appeals, [provided] all required documentation, and complied with every deadline, and fully exhausted all FEMA administrative remedies. AC at 3. FEMA twice asserted that Plaintiff was receiving [other] public assistance affecting eligibility. ECF No. 15 (Plaintiff’s Opposition, Opp.); ECF No. 14–1 at 3–4 (Duplicative
II. Procedural History
On September 22, 2023, Plaintiff filed a pro se complaint against FEMA in King’s County Supreme Court of the State of New York. See ECF No. 1, Ex. 1; Seda v. FEMA, Index No. 709/2023.3 The United States Attorney’s Office for the Eastern District of New York (EDNY) received notice of the matter on May 5, 2025, and removed the lawsuit to the United States District Court for the Eastern District of New York on May 19, 2025. ECF No. 1; Mot. at 10–11. On December 9, 2025, Plaintiff filed an Amended Complaint. ECF No. 10. FEMA filed its motion to dismiss on January 26, 2026. ECF No. 12. Plaintiff filed an opposition to FEMA’s motion to dismiss on February 20, 2026. ECF No. 15. In support of his Opposition, Plaintiff also filed an affirmation, which contained 15 exhibits. ECF Nos. 13 & 14 (Affirmation and Exhibits, Aff. & Ex.). Three weeks later, FEMA filed its reply. ECF No. 16 (FEMA’s Reply, Reply). On March 25, 2026, without obtaining leave of the Court, Plaintiff filed a response to Defendant’s Reply. ECF No. 17 (Plaintiff’s Sur-Reply, Sur-Reply).4
The Amended Complaint asserts eight total causes of action: a Stafford Act violation for approving and failing to properly administer rental and storage assistance (Claim I); violations of mandatory rules governing calculations, notices, and appeals (Claim II); an APA claim for arbitrary and capricious agency action (Claim III); a Fifth Amendment due process claim for deni[al] [of] fair notice, accurate determinations, and meaningful appellate review (Claim IV); three tort claims for negligent administration of disaster assistance (Claim V), emotional distress (Claim VI), and an FTCA negligence claim (Claim VII); and lastly an ultra vires agency action claim alleging FEMA acted beyond its lawful authority (Claim VIII). See generally AC.
FEMA moves to dismiss Plaintiff’s claims for: (1) lack of subject matter jurisdiction pursuant to Rule 12(b)(1), because sovereign immunity shields federal agency from suit and FEMA has not waived its immunity, Mot. at 6; (2) failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) because Plaintiff has failed to allege any plausible facts supporting a claim and Plaintiff failed to exhaust his administrative remedies prior to bringing the Amended Complaint, id.; and (3) for improper service under Rule 4(i)(1), Mot. at 20.5
LEGAL STANDARD
A. Federal Rule of Civil Procedure Rule 12(b)(1)
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing
B. Federal Rule of Civil Procedure Rule 12(b)(6)
To survive a motion to dismiss brought under
C. Pro Se Plaintiff
A pro se complaint must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court’s obligation to construe a pro se complaint liberally continues to apply [e]ven after Twombly established the plausibility standard for assessing pleadings. Newsome v. Bogan, 795 F. App’x 72, 72 (2d Cir. 2020). A pro se litigant, however, is not exempt from compliance with relevant rules of procedural and substantive law. Ramos-Nunez v. United States, No. 14-cr-102, 2019 WL 1300811, at *4 (S.D.N.Y Mar. 21, 2019) (quoting Traguth v. Zuck, 710 F.2d 90, 96 (2d Cir. 1983)).
DISCUSSION
I. Subject Matter Jurisdiction
The Court begins by determining if it has jurisdiction over Plaintiff’s claims before turning to the substance of any surviving portion of the Amended Complaint because if the Court finds it lacks subject matter jurisdiction, FEMA’s other defenses and objections become moot and do not need to be determined. Daly, 939 F.3d at 426. For the reasons explained below, the Court lacks subject matter jurisdiction over several of Plaintiff’s claims, which are premised on FEMA’s alleged actions when administering disaster aid in response to Hurricane Ida, because they are barred by sovereign immunity and/or the APA.
Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). A waiver cannot be implied but must be unequivocally expressed in statutory text and strictly construed . . . in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996). [T]he plaintiff bears the burden of establishing that [his] claims fall within an applicable waiver. Makarova, 201 F.3d at 113.
FEMA argues that sovereign immunity bars all of Plaintiff’s claims because: (i) the Stafford Act precludes judicial review of discretionary disaster assistance decisions, and (ii) FEMA has not waived sovereign immunity over the discretionary provision of disaster assistance underlying Plaintiff’s claim. Mot. at 6, 11. Plaintiff responds that sovereign immunity does not apply because he alleges procedural and administrative violations of mandatory, nondiscretionary regulations, rather than challenging discretionary policy decisions. See AC at 1–2; Opp. at 2.
As an initial matter, the Court lacks subject matter jurisdiction over Plaintiff’s Fifth Amendment due process (Claim IV), state tort (Claims V and VI), and mandatory regulation (Claim II) claims because FEMA has not waived sovereign immunity. Specifically, Plaintiff’s Fifth Amendment due process claim (Claim IV) and his claim premised on FEMA’s alleged failure to comply with mandatory regulations (Claim II) are barred because no statute provides an express waiver for claims of their kind. See Lane, 518 U.S. at 192. Likewise, Plaintiff’s negligent administration and emotional distress claims (Claims V and VI) are barred because
Next, the Court lacks subject matter jurisdiction over Plaintiff’s claims for violations of the Stafford Act (Claim I) and FTCA (Claim VII) because they are barred by the discretionary function exception.7 Even where sovereign immunity has been statutorily waived, government liability is often subject to exceptions, including, as relevant here, the discretionary function exception. See e.g., In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d Cir. 2008). For all acts that fall within this exception, the United States has not waived its sovereign immunity, and federal courts lack subject matter jurisdiction over claims premised on those acts. Cangemi v. United States, 13 F.4th 115, 130 (2d Cir. 2021).
The statutes at issue here—the FTCA and Stafford Act—each contain exceptions for discretionary functions. Under the FTCA, a plaintiff may sue the United States for injuries caused by the negligent or wrongful act or omission of a federal government employee acting within the scope of his or her employment, under circumstances where the United States, if a
To determine whether the discretionary function exception applies, courts use the two-part Berkovitz/Gaubert test.8 Under this test, the discretionary function exception bars a claim where actions: (1) involve an element of judgment or choice and (2) are based on considerations of public policy. See United States v. Gaubert, 499 U.S. 315, 322–23 (1991) (citing Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536–37 (1988)). An act does not involve an element of judgment or choice where a federal statute, regulation, or policy specifically
As explained below, FEMA’s alleged actions satisfy both prongs of the Berkovitz/Gaubert test, and Claims I and VII are therefore jurisdictionally barred.9
i. Plaintiff Points to No Specific Mandatory Directive that FEMA Violated
Beginning with the first prong of the Berkovitz/Gaubert analysis, the Court evaluates if FEMA’s alleged actions involved an element of judgment or choice. Gaubert, 499 U.S. at 322. Here, the Court looks to the Stafford Act,
FEMA’s accompanying regulations further provide discretionary instruction. In general, FEMA may provide assistance to individuals and households who qualify for such assistance[.]
The Court now looks specifically to the regulations cited in the Amended Complaint that purport to impose a mandatory directive on FEMA. Though Plaintiff fails to point to specific provisions that he alleges require FEMA to follow a set course of action, he nevertheless directs the Court to
ii. FEMA’s Alleged Conduct Was Susceptible to Policy Analysis
The second inquiry under the Berkovitz/Gaubert test looks at whether the judgment or choice in question [is] . . . grounded in considerations of public policy or susceptible to policy analysis. Cangemi, 13 F.4th at 130–31. Put differently, the second prong asks courts to determine whether the judgment is of the kind that the discretionary function exception was designed to shield. Berkovitz, 486 U.S. at 536. Where, as here, established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion. Gaubert, 499 U.S. at 324. Plaintiff fails to rebut that presumption.
[D]istribution of disaster grants is a discretionary act grounded in social and economic public policy which may not be second guessed by the courts. Keita, 2021 WL 3549876, at *6 (citing Dubow v. FEMA, No. 16-cv-3717, 2018 WL 472816, at *6 (E.D.N.Y. Jan. 18, 2018); Konashenko, 2014 WL 1761346, at *5). And the Second Circuit has found that the discretionary [function] exception in the Stafford Act serves to prevent judicial second-guessing of agency decisions. Dubow, 2018 WL 472816, at *6 (citing In re World Trade Ctr., 521 F.3d at 192). Additionally, allocation of disaster relief funds under the Stafford Act and redistribution of those same funds to best serve the interests of the public under the Policy are clearly acts based on the purposes that the Stafford Act regulatory regime seeks to accomplish. Id. (citing Gaubert, 499 U.S. at 325 n.7).
iii. Plaintiff’s Attempts to Bypass the Discretionary Function Exception Fail
Plaintiff attempts to distinguish his claims on the basis that he is not challeng[ing] . . . FEMA’s discretionary authority but rather is contesting post approval implementation failures by alleg[ing] that FEMA approved rental assistance, induced reliance, and then failed to disburse approved benefits while imposing inconsistent, procedurally defective, and duplicative documentation requirements. Opp. at 1, 3. FEMA argues that this is a distinction without a difference. Reply at 2. The Court agrees with FEMA and finds these actions to remain under the umbrella of the discretionary function exception.
Plaintiff’s allegations rest on his assertions that FEMA approved and then failed to disburse rental assistance. Opp. at 2; see AC at 2. Specifically, Plaintiff asserts that once FEMA approved rental assistance, it was required to implement that decision in accordance with its own regulations and procedure, Opp. at 3, including
Plaintiff next argues that his constitutional law claim alleging that FEMA denied [him] fair notice; accurate determinations; and meaningful appellate review, AC at 4, is exempted from sovereign immunity’s inoculation because Courts recognize that constitutional and procedural violations remain reviewable . . . under the Stafford Act, Opp. at 4; see Konashenko, 2014 WL 1761346, at *7. While this is true, such constitutional claims must be colorable. See Webster v. Doe, 486 U.S. 592, 603 (1988); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (A claim invoking federal-question jurisdiction . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.). In response, FEMA argues that Plaintiff’s claim is frivolous and that there is no absolute constitutional right to
To prevail on a Fifth Amendment due process claim, Plaintiff must first establish that he had a constitutionally protected property interest. See Leroy v. N.Y. City Bd. of Elections, 793 F. Supp. 2d 533, 537 (E.D.N.Y. 2011). To have a property interest in a benefit, a person . . . must . . . have a legitimate claim of entitlement to it. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). [A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion. Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 756 (2005). Conversely, where statutes or regulations meaningfully channel[ ] official discretion by mandating a defined administrative outcome, a property interest will be found to exist. Kapps v. Wing, 404 F.3d 105, 113 (2d Cir. 2005) (quoting Sealed v. Sealed, 332 F.3d 51, 56 (2d Cir. 2003)).
The statutes and regulations to which Plaintiff cites, and which govern distributions of disaster proceeds, do not mandat[e] a defined administrative outcome, Town of Castle Rock, 545 U.S. at 756, but rather permit government officials the ability to grant or deny applications in their discretion, Kapps, 404 F.3d at 113; see supra Part I.A.i. Even liberally construed, there is no ambiguity: emergency benefits granted by FEMA do not constitute a protected property interest. And, moreover, other courts in this District have previously held the same. See Dubow, 2018 WL 472816, at *8; Konashenko, 2014 WL 1761346, at *8. The Court agrees and the facts alleged in this case support the same conclusion. Indeed, Plaintiff even concedes as much in his Sur-Reply. See Sur-Reply at 1 (Plaintiff . . . does [not] claim entitlement to benefits as a constitutional right.). Without a property interest, the Plaintiff has no due process claim and the court dismisses Claim IV accordingly.
Plaintiff fails to navigate the Amended Complaint around the barrier posed by sovereign immunity and, therefore, his Claims I, II, IV, V, VI, and VII are dismissed for lack of jurisdiction under Rule 12(b)(1).
B. Plaintiff may not Bring a Claim Under the APA
Plaintiff brings Claim III under the APA, alleging that FEMA’s actions were arbitrary and capricious; contrary to law; based on false data; and unsupported by substantial evidence. See AC at 4. He further argues that because FEMA violat[ed] mandatory regulations, sovereign immunity does not apply, and judicial review is authorized under
The APA allows for judicial review of agency action that has adversely affected or aggrieved a person within the meaning of the relevant statute.
Here, the Stafford Act precludes judicial review twice over by both expressly incorporating sovereign immunity and committing FEMA’s action to FEMA’s discretion. See
II. Ultra Vires Claim
Plaintiff’s final claim (Claim VIII) is an allegation of ultra vires agency action in which he asserts that FEMA acted beyond its lawful authority by [m]isapplying shelter offsets; [u]sing false residence data; [and] [i]gnoring mandatory procedures. AC at 4. FEMA fails to acknowledge Plaintiff’s claim in either its Motion or its Reply. Consequently, the Court considers sua sponte whether the claim must be dismissed.
District courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). For cases involving a pro se litigant, however, this power must be reserved for . . . [a] complaint [that] is so frivolous that, construing the complaint under the liberal rules applicable to pro se complaints, it is unmistakably clear that . . . the claims are lacking in merit. Mendlow v. Seven Locks Facility, 86 F. Supp. 2d 55, 57 (D. Conn. 2000) (citing Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)).
Ultra vires review is available where an agency has taken action entirely in excess of its delegated powers and contrary to a specific prohibition in a statute. Nuclear Regul. Comm’n v. Texas, 605 U.S. 665, 681 (2025). This exception, known as the Kyne exception, is narrow and exacting and it does not apply simply because an agency has arguably reached a conclusion which does not comport with the law. . . . Rather, it applies only when an agency has taken action entirely in excess of its delegated powers and contrary to a specific prohibition in a
Ultra vires claims are only available in the extremely limited circumstance where: (i) the statutory preclusion of review is implied rather than express; (ii) there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory. Yale New Haven Hosp. v. Becerra, 56 F.4th 9, 27 (2d Cir. 2022).
Plaintiff fails to meet the first and third of these requirements. Starting with the first prong, the Stafford Act plainly and expressly precludes review of FEMA action. See
III. Leave to Amend
Typically, a pro se complaint should not be dismissed without granting leave to amend at least once whenever the Court cannot rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim. Elder v. McCarthy, 967 F.3d 113, 132 (2d Cir. 2020). A court should freely give leave when justice so requires, but it may, in its discretion, deny leave to amend for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party. MSP Recovery Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (affirming denial of leave to amend). Although Plaintiff does not seek leave to amend the Amended Complaint, for the avoidance of doubt, the Court does not grant him leave to amend further because Plaintiff’s claims cannot be cured by amendment and Plaintiff has already had the opportunity to amend his claims.
First, the deficiencies in Plaintiff’s claims cannot be cured by amendment. Where the problem with [a pro se plaintiff’s] causes of action is substantive[,] better pleading will not cure it, and leave to amend may be properly denied as futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Futility is a determination, as a matter of law, that proposed amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6). In re Tribune Co. Fraudulent Conv. Litig., 10 F.4th 147, 175 (2d Cir. 2011). And denial of leave to amend on the basis of futility may be appropriate where a claim is dismissed [] on sovereign immunity grounds. Harrison v. New York, 95 F. Supp. 3d 293, 331 (E.D.N.Y. 2015). The Court concludes that granting leave to amend would be futile because any amendment would not cure the subject matter jurisdiction defects present in Claims I through VII. See U.S. Underwriters Ins. Co. v. Ziering, No. 06-cv-1130, 2010 WL 3419666, at *9 (E.D.N.Y. Aug. 27, 2010). Moreover, Plaintiff has no means of remedying his ultra vires claim in such a way that would state a claim under Rule 12(b)(6). And while leave to amend should be liberally granted to pro se litigants, see Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013), the Amended Complaint gives no indication that a valid claim might be stated, Cuoco, 222 F.3d at 112; see also supra Part II.
Second, Plaintiff has already been granted leave to amend once to address issues raised in FEMA’s pre-motion letter, December 8, 2025, Text Order, and because the Court treated allegations raised in the Opposition and Affirmation and Exhibits13 as though they were part of the formal pleadings, Plaintiff has effectively received several opportunities to amend his complaint. See McKeever v. Singas, No. 17-cv-4996, 2022 WL 5430426, at *2, *15 (E.D.N.Y. June 16, 2022) (considering allegations raised for first time in pro se plaintiff’s opposition when deciding motion to dismiss and denying leave to amend), report and recommendation adopted as modified, 2022 WL 4095558 (E.D.N.Y. Sept. 7, 2022). Therefore, leave to amend would be
Accordingly, the Court denies Plaintiff leave to amend, notwithstanding his pro se status.
CONCLUSION
For the reasons set forth above, the Court GRANTS FEMA’s motion, ECF No. 12, and DISMISSES Plaintiff’s Amended Complaint, ECF No. 10, in its entirety. Claims One through Seven are dismissed without prejudice pursuant to Rule 12(b)(1), and Claim Eight is dismissed with prejudice pursuant to Rule 12(b)(6).
Although Plaintiff did not pay a filing fee because this action was removed to federal court,
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
April 27, 2026