Adolph v. Federal Emergency Management Agency of the U.S.

Decision Date13 September 1988
Docket NumberNo. 87-3196,87-3196
Citation854 F.2d 732
PartiesEmmett ADOLPH, Sr., et al., Plaintiffs-Appellants, v. FEDERAL EMERGENCY MANAGEMENT AGENCY OF THE UNITED STATES, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Brian J. Waid, Bubrig, Scandurro & Waid, Buras, La., for plaintiffs-appellants.

Drake Cutini, John Volz, U.S. Atty., Renee Clark McGinty, Asst. U.S. Atty., New Orleans, La., Arthur R. Goldberg, Atty., Dept. of Justice, Civ. Div., Robert S. Greenspan, John Scheibel, Atty., Assoc. Gen. Counsel, FEMA, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, WILLIAMS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Louisiana property owners affected by flood-plain ordinances passed by the Plaquemines Parish Commission Council filed this class action alleging an unconstitutional taking. They challenge the imposition, without compensation, of severe flood control regulations which are said "effectively [to] sound a death-knell for these communities, the ancestry of which pre-dates our Constitution." Because the parish was required by Federal Emergency Management Agency (FEMA) regulations to adopt such a stringent building code in order to participate in the National Flood Insurance Program (NFIP), 42 U.S.C. Sec. 4001 et seq., the plaintiffs named FEMA as a defendant, as well as the parish council, which body had imposed the challenged building ordinances--conforming to federal standards--upon the affected residents. The trial court dismissed the suit against FEMA under Fed.R.Civ.P. 12(b)(6). While the substantive issues presented herein are res nova before this court, our opinion today is guided by a compelling decision from the United States District Court for the District of Columbia, dismissing identical allegations against local building ordinances passed in conformance with FEMA guidelines. We AFFIRM.

I. The NFIP Scheme.

In order to participate in the NFIP, 1 the Plaquemines Parish Commission Council passed building ordinances in conformance with FEMA regulations that required that new or additional structures meet certain elevation requirements. 2 42 U.S.C. Secs. 4022, 4102. The plaintiffs brought this suit against FEMA and the parish council alleging that the building ordinances made development of their (and some 7,649 class members') property prohibitively expensive, rendering their property unmarketable, and resulting in an unconstitutional taking in violation of the fifth and fourteenth amendments. FEMA was named as a defendant because certain federal benefits would not be available in the parish if the parish had not adopted an ordinance (such as the one adopted), that meets certain requirements (set by FEMA and calculated with hundred-year flood plain estimates taken by FEMA) designed to minimize future flood losses in the parish. As stated in the complaint, the plaintiffs view any injunctive relief against the parish as meaningless unless FEMA is also enjoined from "punishing" the parish for noncompliance with the allegedly unconstitutional regulations.

The district court dismissed the complaint for failure to state a claim. This disposition was based on holdings (1) that the ordinances were passed by the parish (which was named as a party and against which this litigation is currently stayed pending action here), rather than FEMA, and thus there was no Article III case or controversy; and (2) that the FEMA regulations did not result in an unconstitutional taking.

On this appeal the plaintiffs contend that the parish ordinances were passed pursuant to FEMA regulations and thus there is an actual controversy between plaintiffs and FEMA. The plaintiffs also contend that whether an unconstitutional taking has occurred depends upon the reasonableness of the government regulation and that reasonableness should be determined on the facts as a whole on a case-by-case basis, rather than on a motion to dismiss.

The plaintiffs' takings argument is legally unsupportable, however, though this court has not previously addressed the precise issue of flood control measures that effectively eliminate commercial value. The only court to address the FEMA regulatory guidelines for local ordinances held that the federal flood prevention regulations do not result in an unconstitutional taking. Texas Landowners Rights Ass'n v. Harris, 453 F.Supp. 1025 (D.D.C.1978) (decided on summary judgment), aff'd mem., 598 F.2d 311 (D.C.Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979). Neither the distinction that that case was decided not on the complaint alone, but with consideration of stipulated facts, nor very recent Supreme Court decisions on regulatory takings, undermine the persuasiveness of this well-reasoned authority adverse to the plaintiffs' arguments.

II. Disposition as a Matter of Law Was Proper.
A. Case or Controversy?

FEMA mistakenly argues that there is no case or controversy between plaintiffs and the agency in this suit. To meet the case-or-controversy requirement of article III of the Constitution, (1) a plaintiff must state an actual or threatened injury to himself; (2) the injury must be a result of the allegedly illegal conduct of the defendant; and (3) the injury must be capable of redress by a favorable decision with respect to the challenged conduct. Common Cause v. Dep't of Energy, 702 F.2d 245, 250 (D.C.Cir.1983). The plaintiffs' allegations of an unconstitutional condition and of federal coercion meet this jurisdictional threshold. Bowen v. Gilliard, --- U.S. ----, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987) (private citizen challenging the effect of federal guidelines and regulations under Aid to Families with Dependent Children (AFDC) program operated by the state).

Although the Texas Landowners court did not address the case-or-controversy issue, its conclusions are relevant to this issue, and its clear implication was that those plaintiffs had alleged a case or controversy with FEMA. If either the Texas Landowners court or the court below had ruled that there was no case or controversy with FEMA, dismissal would have had to have been under rule 12(b)(1), rather than under rule 12(b)(6); neither court properly could have reached the merits of any of the various claims against FEMA if there was a lack of article III jurisdiction.

B. Failure to State a Claim?

Taking the allegations of the complaint as true, however, a court may properly dismiss a suit for failure to state a claim upon which relief may be granted. Because, as a matter of law, FEMA neither affected nor required any unconstitutional taking of the plaintiffs' property, such a disposition is appropriate here.

A claim is not to be dismissed under rule 12(b)(6) unless it appears to a certainty that no relief can be granted under any set of facts provable in support of its allegations or if the allegations, accepted as true, do not present a claim upon which relief legally can be obtained. United States v. Uvalde Consolidated Indep. School Dist., 625 F.2d 547, 549 (5th Cir.1980) (citing Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957)). Texas Landowners establishes that as a matter of law, the NFIP is not a regulatory taking. Because no facts are needed for evaluation of the claim, it is clear that a procedural disposition of claims against FEMA was correct.

C. There Was No Unconstitutional Condition.

By conditioning the availability of federally-subsidized insurance upon enactment of local flood-plain management ordinances in accordance with federal standards, the NFIP represents a voluntary federal program. Texas Landowners, 453 F.Supp. at 1030. As in the cases upholding imposition of speed-limit reductions, minority set-asides, and drinking-age requirements as a condition of federal highway funding, Congress traditionally has been sustained in enacting such programs to encourage state and local participation in the achievement of federal legislative goals. See South Dakota v. Dole, --- U.S. ----, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) ("Incident to this power [to Tax and Spend], Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power 'to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.' ") (citing Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758, 2772, 65 L.Ed.2d 902 (1980) (10% set-aside for contracts with minority business enterprises); Lau v. Nichols, 414 U.S. 563, 569, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974) (nondiscrimination provisions applied to local schools). 3

Because communities such as Plaquemines Parish "weigh the advantages of these federal benefits against the limitations on future development in the communities, which must be done in a safe manner, so that there will be no damage from flooding in the future," the district court here correctly saw this case as indistinguishable from Texas Landowners. We concur with the holding below that the parish was not compelled to participate in the NFIP and that as a result FEMA could not be charged with an unconstitutional taking of property, even if, arguendo, the elevation requirements otherwise could be shown to constitute an actual deprivation without compensation.

III. That All Takings Claims Must Be Factually Explored Is

Legally Erroneous.

The plaintiffs argue that First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, --- U.S. ----, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), symbolizes both the fact-specific nature of takings determinations and that dismissal without at least some evidentiary development, either administratively or at trial, is improper. Relying in part upon Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979), and Goldblatt v. Hempstead, 369...

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