Bintz v. Fed. Emergency Mgmt. Agency, Civil Action No. 1:16–CV–1024

• Decision Date: 26 February 2018
• Docket Number: Civil Action No. 1:16–CV–1024
• Citation: 379 F.Supp.3d 296
• Parties: Edward E. BINTZ, Plaintiff v. The FEDERAL EMERGENCY MANAGEMENT AGENCY, the Department of Homeland Security, and W. Craig Fugate, Defendants
• Court: U.S. District Court — District of Delaware

379 F.Supp.3d 296

Edward E. BINTZ, Plaintiff

v.The FEDERAL EMERGENCY MANAGEMENT AGENCY, the Department of Homeland Security, and W. Craig Fugate, Defendants

Civil Action No. 1:16–CV–1024

United States District Court, D. Delaware.

Signed February 26, 2018

Edward E. Bintz, Arlington, VA, pro se, John G. Harris, Berger Harris, LLP, Wilmington, DE, for Plaintiff.

Jennifer Lynne Hall, Jesse S. Wenger, Razeyeh Jafarzadeh, U.S. Attorney's Office, Wilmington, DE, for Defendants.

MEMORANDUM

Christopher C. Conner, Chief Judge

Plaintiff Edward E. Bintz ("Bintz") commenced this action against defendants for judicial review of a final agency action by the Federal Emergency Management Agency ("FEMA") pursuant to the National Flood Insurance Act, 42 U.S.C. § 4001 et seq. Bintz appeals an order of the magistrate judge denying his motion (Doc. 24) to supplement the administrative record and for leave to conduct discovery.

I. Factual Background & Procedural History ¹

FEMA administers the National Flood Insurance Program pursuant to the National Flood Insurance Act. (Doc. 1 ¶ 20; Doc. 8 ¶ 20). The purpose of the program is to "enable interested persons to purchase [flood] insurance against loss resulting from physical damage to or loss of real property or personal property." 42 U.S.C. § 4011(a). To achieve this goal, FEMA adopts flood insurance studies and flood insurance rate maps to assess and to delineate flood risk within a given community. See 42 U.S.C. §§ 4012, 4102 ; (Doc. 1 ¶ 21; Doc. 8 ¶ 21). A flood insurance rate map establishes the base flood elevation—a computed elevation to which floodwater is expected to rise during the base flood² —for properties in areas susceptible to flooding. (Doc. 1 ¶ 21; Doc. 8 ¶ 21). Coastal base flood elevations are assigned according to "transects" which are cross sections of a beach that run perpendicular to the shoreline. (Doc. 1 ¶ 21; Doc. 8 ¶ 21). Together, base flood elevations and flood insurance rate maps are used to set premiums for federal flood insurance policies. (Doc. 1 ¶ 22; Doc. 8 ¶ 22).

Bintz's Ocean Drive property is located in transect 1610 in South Bethany, Delaware. (Doc. 1 ¶ 22; Doc. 8 ¶ 22). FEMA issued a preliminary flood insurance rate map in December 2013 ("2013 Preliminary Map") which reduced the base flood elevation for South Bethany properties, including transect 1610, from 12 feet to 10 feet. (Doc. 1 ¶ 47). In April 2014, George Junkin ("Junkin"), a South Bethany town councilman, sent an email to FEMA stating, inter alia , that the base flood elevation for Ocean Drive properties should remain at 12 feet. (Id. ¶ 50; Doc. 8 ¶ 50). In response to Junkin's letter, FEMA revised the 2013 Preliminary Map to increase the base flood elevation from 10 feet to 13 feet for properties on Ocean Drive. (Doc. 1 ¶ 52; Doc. 8 ¶ 52). The revised 2013 Preliminary Map became final on September 16, 2014 ("2014 Map"). (Doc. 1 ¶ 54).

The town of South Bethany and residents thereof lodged objections to the 2014 Map.³ (Id. ¶ 55). FEMA rescinded the South Bethany portion of the 2014 Map on or about February 25, 2015 and the base flood elevation for properties on Ocean Drive remained at 2005 levels—12 feet. (Id.; Doc. 8 ¶ 55). Bintz submitted a Freedom of Information Act ("FOIA") request on March 29, 2015 seeking information regarding changes in FEMA's erosion analysis which led to the base flood elevation increase from 10 to 13 feet in the 2014 Map. (Doc. 1 ¶ 63; Doc. 8 ¶ 63). FEMA purportedly provided a partial response to Bintz's FOIA request on March 29, 2016. (Doc. 1 ¶ 63). FEMA proposed a new preliminary map on May 18, 2015 ("2015 Preliminary Map") which reassigned a 13–foot base flood elevation to Ocean Drive properties in South Bethany. (Id. ¶ 56; Doc. 8 ¶ 56). FEMA hosted an open house presentation for South Bethany residents on June 12, 2015 to explain the 2015 Preliminary Map. (Doc. 1 ¶ 57). Bintz and South Bethany appealed the base flood elevation determination in the 2015 Preliminary Map in January 2016. (Id. ¶¶ 63–65, 68–69; Doc. 8 ¶¶ 68–69). FEMA denied both appeals on April 6, 2016. (Doc. 1 ¶ 70; Doc. 8 ¶ 70).

FEMA project engineer Robert Pierson ("Pierson") agreed to discuss with Bintz the reasons for FEMA's denial of his appeal. (Doc. 1 ¶ 64; Doc. 8 ¶ 64). During an April 22, 2016 telephone call, Pierson responded to some of Bintz's inquiries and ostensibly agreed to respond to additional questions by email. (Doc. 1 ¶ 65). Bintz submitted questions to Pierson by email on April 28, 2016 and, upon Pierson's request, by letter on May 2, 2016. (Id. ¶ 66; Doc. 8 ¶ 66; Doc. 25–6). Bintz avers that FEMA never responded to these subsequent inquiries. (Doc. 1 ¶ 67). FEMA also received a supplemental submission from Bintz in May 2016 following the denial of his appeal. (Id. ¶ 71; Doc. 8 ¶ 71). FEMA reaffirmed its denial of Bintz's appeal on August 5, 2016. (Doc. 1 ¶ 72; Doc. 8 ¶ 72). The 2015 Preliminary Map became final on September 7, 2016 ("2016 Map"). (Doc. 1 ¶ 8; Doc. 8 ¶ 8).

Bintz commenced the instant appeal on November 4, 2016 pursuant to 42 U.S.C. § 4104(g) and 44 C.F.R. § 67.12(a). (Doc. 1). Bintz seeks reversal of FEMA's denial of his appeal, implementation of the 10–foot base flood elevation established in the 2013 Preliminary Map for transect 1610, and a temporary stay of FEMA's implementation of the 2016 Map during the pendency of this action. (Id. at 32). Defendants filed an answer on January 24, 2017. (Doc. 8). FEMA compiled and submitted an administrative record comprised of documents relied upon in determining base flood elevation for South Bethany's coastline. (Doc. 11). Following discussions between the parties about the completeness of the administrative record, FEMA supplemented the record on May 10, 2017. (Docs. 15, 17–23).

On June 5, 2017, Bintz filed a motion to supplement the record and for leave to conduct discovery. (Doc. 24). Bintz sought:

• Supplementation of the administrative record to include two photographs and a map submitted to FEMA identifying street locations and flood insurance rate map transects on Ocean Drive. (Doc. 25 at 19–20 ¶ 1).

• Supplementation of the administrative record to include Bintz's appeal of FEMA's FOIA response and letters from the Office of Administrative Law Judges in response thereto. (Id. at 20 ¶ 2).

• Discovery of information and documents responsive to questions posed to FEMA in Bintz's May 2, 2016 letter. (Id. at 20 ¶ 3).

• Discovery of information and documents that reflect the "extra replenishment" the neighboring town of Bethany Beach received which was purportedly unnecessary and not provided to South Bethany. (Id. )

• Discovery of information and documents that (1) reflect whether or not Compass PTS JV ("Compass") was an independent evaluator of FEMA's base flood elevation determinations and (2) provide factual context surrounding FEMA's obtaining of the "Compass Memorandum." (Id. )

• Discovery of documents responsive to Bintz's FOIA request which FEMA purportedly withheld. (Id. at 20 ¶ 4).

The court referred Bint'z motion to Chief Magistrate Judge Mary Pat Thynge for resolution on August 29, 2017. (Doc. 29). Judge Thynge issued a memorandum order denying Bintz's motion in toto. (See Doc. 30). Bintz appealed Judge Thynge's order on November 2, 2017. (Doc. 31). The appeal is fully briefed and ripe for disposition.

II. Legal Standard

A district court may refer a nondispositive motion to a magistrate judge "to hear and determine." 28 U.S.C. § 636(b)(1)(A). Following timely objection by either party, the court must "modify or set aside any part of the order that is clearly erroneous or is contrary to law." FED. R. CIV. P. 72(a) ; 28 U.S.C. § 636(b)(1)(A). Findings of fact are reviewed for clear error and matters of law de novo. Equal Employment Opportunity Comm'n v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (citing Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992) ). Any objection to the magistrate judge's order not timely raised is waived. Id.

III. Discussion

The court may "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In making this determination, the court is limited in its review to the full record before the agency at the time of its decision or those parts of it cited by a party. Id. § 706 ; see also Tinicum Twp., Pa. v. U.S. Dep't of Transp., 685 F.3d 288, 294 (3d Cir. 2012) (citing C.K. v. N.J. Dep't of Health & Human Servs., 92 F.3d 171, 182 (3d Cir. 1996) ). If an agency certifies that the administrative record is full and complete, the court "assumes that the agency properly designated the Administrative Record absent clear evidence to the contrary." Citizens Advisory Comm. on Private Prisons v. Fed. Bureau of Prisons, 197 F.Supp.2d 226, 240 (W.D. Pa. 2001) (citations omitted).

A. Supplementation of the Administrative Record

There is a strong presumption against supplementing the administrative record in an action governed by the Administrative Procedures Act, 5 U.S.C. § 551 et seq. NVE, Inc. v. Dep't of Health & Human Servs., 436 F.3d 182, 189 (3d Cir. 2006) ; see also Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 305 (3d Cir. 2013). A court's review of agency action must be based on the existing administrative record, not "some new record made initially in the reviewing court" or "post-hoc rationalizations" by the agency in question. Christ the King Manor, 730 F.3d at 305 (quoting Rite Aid of Pa., Inc. v. Houstoun, 171 F.3d 842, 851 (3d Cir. 1999) ). We may look beyond the administrative record only "when the action is adjudicatory in nature and the agency factfinding procedures are inadequate," or "when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action." NVE, 436 F.3d at 189 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,...