City of Brunswick, Ga. v. US, Civ. A. No. 285-142.

• Decision Date: 20 May 1987
• Docket Number: Civ. A. No. 285-142.
• Citation: 661 F. Supp. 1431
• Parties: The CITY OF BRUNSWICK, GEORGIA, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

661 F. Supp. 1431

The CITY OF BRUNSWICK, GEORGIA, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 285-142.

United States District Court, S.D. Georgia, Brunswick Division.

May 20, 1987.

COPYRIGHT MATERIAL OMITTED

Eugene Highsmith, Brunswick, Ga., David F. Walbert, Atlanta, Ga., for plaintiff.

Arthur R. Goldberg and Drake Cutini, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants.

ORDER

ALAIMO, Chief Judge.

Plaintiff, the City of Brunswick, Georgia ("Brunswick"), seeks to recover attorney fees, costs and other expenses incurred in this litigation against the United States, the Director of the Federal Emergency Management Agency and the Administrator of the Federal Insurance Administration as defendants (collectively, "FEMA"). Plaintiff contends that it is eligible for an award of such costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), other relevant statutes and at common law. In sum, Brunswick requests an award of $477.934.11. Defendant maintains that plaintiff is not eligible for any award under the EAJA but that, if any award is made under the EAJA or other statutes, it should be substantially reduced. The Court finds that Brunswick is entitled to an award in the amount of $312,876.10 for attorney fees and other expenses, and $11,616.05 for costs.

FACTUAL BACKGROUND

This case began as a technical dispute over "base flood elevations" and culminated in a legal grudge-match over attorney fees. An historical overview is necessary to set the dispute in its current context. The lawsuit arose out of Brunswick's challenge to FEMA's determination of the flood level figures used in calculating Brunswick's eligibility for federally subsidized flood insurance.

A comprehensive statutory scheme governs the availability of federally subsidized flood insurance. After completing a study on the feasibility of a national program of flood insurance, Congress enacted the National Flood Insurance Act of 1968, Pub.L. 90-448, 82 Stat. 572 (1968), and the Flood Disaster Protection Act of 1973, Pub.L. 93-234, 87 Stat. 979 (1973), codified as amended, 42 U.S.C. § 4001 et seq. (1982). This legislation aimed to combine the incentive of federally subsidized flood insurance with the requirement that communities receiving such insurance carefully control the development of land historically likely to be visited by floods. In addition, the purchase of such insurance is made a precondition of receiving federal assistance for any construction in certain high-risk areas.

Brunswick sought to be included in the National Flood Insurance Program in 1974, thereby triggering the availability of flood insurance to property owners at subsidized rates. 42 U.S.C. §§ 4011, 4012(c). At the same time, Brunswick's application set into motion FEMA's performance of a flood insurance study ("FIS") and the subsequent creation of a flood insurance rate map ("FIRM"). 42 U.S.C. §§ 4101, 4104.

The purpose of the FIS is to identify "flood plains," such as "coastal areas in the United States which have special flood hazards," and to establish "flood risk zones" and "make estimates with regard to probable flood-caused loss" for these zones. The results of the FIS are then "translated" onto a FIRM, which is an official map of the community delineating the "special hazard areas and risk premium zones applicable to the community." 44 C.F.R. § 59.1 (1986). In order to calculate actuarially sound insurance rates for flood-risk zones, FEMA makes reference to a variable called the "base flood elevation" ("BFE"), which is the estimated water level of a "flood having a one percent chance of being equalled or exceeded in any given year." The BFE, therefore, has an impact both on the insurance rates to be charged and on the kinds and costs of construction to be permitted in flood-risk zones.

Following the promulgation of a final FIRM, a participating community must enact a "flood plain management" ordinance to regulate the development of new or improved structures in high-risk areas. 42 U.S.C. §§ 4012(c), 4022, 4102. If the community fails to establish a local ordinance meeting the minimum safety standards set by FEMA, it will lose the benefit of subsidized insurance. 44 C.F.R. § 60.3. A prime example of those safety standards is the requirement that new or substantially improved buildings be erected at or above the BFE's shown on the FIRM. 44 C.F.R. § 60.3(c).

FEMA employed a private engineering firm in Virginia — Camp, Dresser & McKee ("CDM") — to perform the FIS for Brunswick and the surrounding tri-county area. On December 19, 1984, FEMA notified Brunswick by certified letter that the final FIRM would go into effect on June 19, 1985, and that the City had six months to adopt appropriate ordinances regulating development in the flood-risk areas. Brunswick neglected to respond to FEMA's notice of December 1984 until May 1, 1985, apparently because of an inadvertent failure to read the notice until that time. On May 1, 1985, the City requested a ninemonth extension of the FIRM's effective date and asserted both that the FIS was technically deficient and that the FIRM should not be imposed without FEMA's first conducting an environmental impact statement ("EIS") for the Brunswick area. FEMA refused to grant an extension, but invited Brunswick to submit additional flood data, which the City did. FEMA also stated its belief that an EIS was not required prior to the implementation of a FIRM.

In order to avoid being terminated from the flood insurance program, Brunswick imposed an indefinite moratorium on building permits within the high-risk flood areas of the FIRM.

On July 16, 1985, Brunswick filed this suit against FEMA seeking to enjoin the agency from implementing the FIRM and requesting declaratory relief on the basis of the following contentions: (1) that the proposed flood elevations were hopelessly inaccurate; (2) that FEMA was obligated to perform a site-specific EIS before implementing a FIRM; (3) that FEMA violated its own regulations by failing to conduct notice-and-comment rule making on the methodology to be used in performing a FIS; and (4) that FEMA unlawfully delegated critical fact-finding functions to a private entity (CDM) without exercising meaningful supervision over its work.

On August 16, 1985, the Court approved a discovery plan worked out by the parties in connection with Brunswick's request for a preliminary injunction. Discovery proceeded during the following months, with a variety of problems arising which required the repeated intervention of the Court. Each party filed proposed findings of fact and conclusions of law. By late December of 1985, the parties were earnestly engaged in settlement discussions, and a tentative trial date had been set for January 2, 1986. By Order of January 9, 1986, having reviewed FEMA's motion for summary judgment, the Court dismissed Brunswick's count seeking judicial review of FEMA's flood insurance rate map because Brunswick had failed to apply for review within the statutory time limit set by 42 U.S.C. § 4104(g), which requires that final agency determinations be appealed within 60 days. The Court, therefore, dismissed the count seeking judicial review of agency action from the complaint for lack of subject matter jurisdiction. At oral argument, the Court had previously denied FEMA's motion for summary judgment as to the remainder of Brunswick's complaint, which survived to be decided at trial.

On January 29, 1986, the parties reached a settlement stipulation which the Court approved. In substance, the settlement agreement provided that the parties would submit any unresolved issues regarding FEMA's performance of the FIS to an arbitration panel of experts. The panel would decide issues submitted to it by the City and its decision would be accepted as final. The agreement also provided a method for the selection of arbitrators. FEMA agreed to modify the FIRM if the arbitration panel reached new base flood elevations. Any new FIRM reflecting the panel's new base flood elevations would become effective by Order of the Court. Brunswick and FEMA agreed to bear the costs of implementing the settlement agreement equally, but Brunswick also promised to make application for an award of attorney fees and costs within 30 days of the conclusion of the settlement process. FEMA did not concede that Brunswick was entitled to any such award.

By March 21, 1986, the arbitration panel was selected and ready to begin deliberations. The Court met with the arbitrators on that date and discussed with them the nature of their duties. In the conference, the Court clearly defined the scope of their inquiry. The Court stated: "The main object is to see that the flood elevation is correct ... I want you to come up with the BFE. ... That is what this is all about." The Court's colloquy with the arbitrators sheds light on the view the arbitrators themselves took of their duty. Richard Tomasello, an arbitrator, suggested that their most difficult task would be to determine the effect on the final BFE if they should discover that "some element of the study that was done originally was totally in error...."

On June 12, 1986, the arbitration panel submitted its report, which found a variety of errors in FEMA's methodology requiring the establishment of new BFE's and leading to the issuance of a new FIRM by FEMA. Although FEMA at first objected to the panel's findings, it later withdrew its objection and issued a new FIRM on October 24, 1986. The Court entered an Order making the new FIRM effective on October 30, 1986.

On November 14, 1986, Brunswick filed a motion stating that it had substantially received the relief it sought and requesting an award of costs, expenses and attorney fees under a variety of statutes and equitable theories, including 28 U.S.C. § 2412, the EAJA. The motion contained itemized estimates of each of these costs, and stated that the...