Keita v. Fema

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------- x

MOHAMMED KEITA, :

:

Plaintiff, : MEMORANDUM & ORDER

:

v. : 17-CV-885 (ENV) (ST)

:

FEMA, STATE FARM FIRE INSURANCE,

:

:

Defendants.

:

:

-------------------------------------------------------------- :

x

VITALIANO, D.J.

On November 6, 2017, the Court entered an order dismissing pro se plaintiff Mohammed

Keita’s original complaint in this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), but with leave to

file a rule-compliant amended complaint. Dkt. 23. He then filed the instant amended complaint,

naming the Federal Emergency Management Agency (“FEMA”), State Farm Fire Insurance

(“State Farm”), JPMorgan Chase Bank (“Chase”), Commerce Bank, N.A. (“Commerce”), and

the City of New York (the “City”) as defendants. Am. Compl., Dkt. 25. On September 6, 2018,

the amended complaint was similarly dismissed. Dkt. 38. Sensing the spark of a claim, the

Second Circuit remanded Keita’s claims against FEMA and State Farm. Dkt. 41. This decision

considers only FEMA’s motion to dismiss this action and only as to itself, which, for the

following reasons, is granted in part and denied in part. A motion for summary judgment by co-

defendant State Farm will be addressed in a separate decision.

Background1

Plaintiff complains that his dwelling, located at 738 Seaview Avenue on Staten Island

(the “Seaview property”), suffered a substantial loss from flooding on April 16, 2007. Am.

Compl. at ¶ 5. Specifically, Keita claims “[t]he dwelling was over flooded, foundation/retaining

walls cracked, flood viod (sic) created on the footing of floor and exposing soil to erosion, black

mold, meldew (sic), heating system in basement, hot water system, loss of rental income, and

loss of used of over 50% as a two family dwelling.” Id. (errors in the original). According to

Keita, these losses totaled no less than $500,000. Id. FEMA and State Farm, as is obvious from

the filing of this lawsuit, saw it differently. In a downward spiral from Keita’s loss estimate, as

best can be discerned from plaintiff’s complaint, State Farm and FEMA recognized the loss at

$34,518.60. Id. Plaintiff alleges, however, that FEMA and State Farm, collectively, approved a

loss payment of only $17,259.30, and that he actually received only $8,629.65. Id. All that is

clear in the pleadings from these numbers is that Keita does not believe either FEMA or State

Farm paid him for the true value of his loss and, as a result, his first cause of action claims

FEMA and State Farm breached their flood and home owner insurance contracts with him and

engaged in “fraud and manipulation.” Id. The jumble of numbers Keita provides on this score

remains a jumble of numbers.

Racing ahead five years in time, and in a factual non-sequitur, Keita gripes about

FEMA’s failure to pay a property damage claim in the aftermath of Hurricane Sandy, the super

storm that inundated metropolitan New York City and left nearly two dozen dead on Staten

1 The background facts are drawn from the complaint and are difficult to discern, but to the

extent that they are comprehensible at all, they are deemed true for purposes of this motion, and

all reasonable inferences are drawn in favor of plaintiff. Vietnam Ass’n for Victims of Agent

Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).

Island. Am. Compl. ¶ 6. As best understood, Keita’s grievance rests on FEMA’s rejection of his

claim under the National Flood Insurance Program (“NFIP”) for damage to property that is

presumably the Seaview property. The haggling over that claim would generate a formal letter

from Keita’s then-attorney to FEMA demanding payment for the Seaview property loss. See Ex.

A Letter from Timothy M. Belknap to FEMA dated February 2016, Dkt. 25 at 3. In further

support of his claim against FEMA for the loss, but in derogation of any responsibility by State

Farm with respect to that loss, Keita attaches a letter he received from State Farm, dated

February 1, 2012, indicating that any NFIP claim or coverage previously under State Farm would

be transferred to NFIP Direct, the federal government’s flood insurance program, effective

February 28, 2012, eight months before Sandy struck. Ex. B Letter from State Farm to Keita,

Dkt. 25 at 4.

Amidst the swirl of charges and counter charges Keita lobs at FEMA, he apparently did

receive a disaster award for something, which is revealed, left handedly, by his gripe that FEMA,

he says, is “garnishing” his SSI benefits seeking repayment of a $31,000 award it previously had

made to him. Am. Compl. ¶ 6. Based on Keita’s opposition brief, it appears that the award,

Keita reveals in opposing this motion, is related to a property located at 863 Father Capodanno

Boulevard also on Staten Island (the “Capodanno property”). Pl.’s Opp’n Mem. ¶ 4, Dkt. 68.2

Lastly, in a totally conclusory catch-all broadside and without a hint of factual support, Keita

appears to allege that FEMA and State Farm Insurance engaged in “[d]iscrimination under

Stafforf (sic) Act.” Am. Compl. at ¶ 6.

2 “A district court deciding a motion to dismiss may consider factual allegations made by a pro

se party in his papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.

2013).

Standard of Review

“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). “The plaintiff bears the burden of proving

subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman

Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Although a court “must accept as true all

material factual allegations in the complaint,” it must not draw inferences favorable to the party

asserting jurisdiction, J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), and

it may consider evidence outside the pleadings, Makarova, 201 F.3d at 113. Subject matter

jurisdiction is a threshold issue, so when a defendant moves to dismiss under both Rules 12(b)(1)

and 12(b)(6), the court must address the 12(b)(1) motion first. See Polera v. Bd. of Educ. of

Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481 (2d Cir. 2002).

In similar fashion, Rule 8(a)(2) requires a “short and plain statement of the claim

showing that the pleader is entitled to relief.” This rule does not compel a litigant to supply

“detailed factual allegations” in support of his claims for relief, Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), “but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

(quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965); see also In re NYSE Specialists Sec.

Litig., 503 F.3d 89, 95 (2d Cir. 2007). “Nor does a complaint suffice if it tenders ‘naked

assertions’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

(quoting Twombly, 555 U.S. at 557, 127 S.Ct. at 1966). A complaint rooted entirely in

conjecture and speculation is worthless. See Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d

236, 240 (2d Cir. 2002) (noting that “conclusory allegations or legal conclusions masquerading

as factual conclusions will not suffice to prevent a motion to dismiss” (internal quotation marks

omitted)).

To survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678,

129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). This “plausibility

standard is not akin to a probability requirement, but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” Id. (internal quotation marks omitted). Then, as noted

earlier, when considering a Rule 12(b)(6) motion, a court must “accept as true all allegations in

the complaint and draw all reasonable inferences in favor of the nonmoving party.” Vietnam

Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).

The Court, furthermore, is mindful that “[a] document filed pro se is to be liberally

construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127

S.Ct., 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted). If a liberal

reading of the complaint “gives any indication that a valid claim might be stated,” the Court must

grant leave to amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

As the circumstances here permit the Court to resolve this matter on Rule 12 grounds, the

Court foregoes any discussion of defendants’ alternative strategy to pursue summary judgment.

Discussion

1. Programmatic Framework for Disaster Relief

Put in the spotlight by Keita’s complaint, the National Flood Insurance Act (“NFIA”) was

enacted to address the unavailability of flood insurance from private insurers and the necessity

for such insurance to address personal hardships and economic distress arising from flooding.

See 42 U.S.C. § 4001(a). Explicitly, NFIA’s purpose is to provide “a reasonable method of

sharing the risk of flood losses . . . through a program of flood insurance . . . and . . . making

flood insurance coverage available on reasonable terms and conditions to persons who have need

for such protection.” Id. Consequently, Congress established the National Flood Insurance

Program (“NFIP”) to serve this purpose. 42 U.S.C. § 4001(b), (c), (d). Since 1979,

responsibility for administering NFIP lies with FEMA under presidential delegation. See Exec.

Order No. 12127, 44 Fed. Reg. 19,367 (Apr. 3, 1979). In accord with that mandate, FEMA has

administered the National Flood Insurance Fund (“NFIF”), which includes “cost incurred in the

adjustment and payment of any claims for losses.” 42 U.S.C. § 4017.

NFIP is administered by the government with private industry assistance. See 42 U.S.C.

§§ 4071–72. FEMA promulgated several regulations under NFIA to dictate the operation of

NFIP, see 44 C.F.R. §§ 59–80 (2021), including the Standard Flood Insurance Policy (“SFIP”)

for a dwelling, see 44 C.F.R. § Pt. 61, App. A(1) (2021). In 1983, FEMA created the Write-

Your-Own (“WYO”) program, authorizing private insurers to issue SFIPs funded by the NFIF.

See 44 C.F.R. § 62.23 (2021). WYO companies, like State Farm, sell SFIPs under NFIA and

relevant regulations. Id. They act as FEMA’s fiscal agents for these purposes. 44 C.F.R. §

62.23(g) (2021).

In this convention, the Stafford Act and relevant regulations authorize and prescribe the

federal response to major disasters. See 42 U.S.C. § 5121 et seq. With particularity, the Stafford

Act provides that “[i]n any major disaster, the President may . . . direct any Federal agency . . . to

. . . provide accelerated Federal assistance and Federal support where necessary to save lives,

prevent human suffering, or mitigate severe damage.” 42 U.S.C. § 5170(a). Further,

[T]he President . . . may provide financial assistance, and . . . direct services, to

individuals and households . . . who, as a direct result of a major disaster, have

necessary expenses and serious needs in cases in which the individuals and

households are unable to meet such expenses or needs through other means.

42 U.S.C. § 5174(a)(1). Specifically, “[t]he President may provide financial assistance for . . .

the repair of owner-occupied private residences, utilities, and residential infrastructure . . .

damaged by a major disaster . . . .” 42 U.S.C. § 5174(c)(2)(A)(i). The President has delegated

this disaster response authority and responsibility to FEMA. Exec. Order No. 12148, 44 Fed.

Reg. 43,239 (July 20, 1979), superseded in part by Exec. Order No. 12919, 59 Fed. Reg. 29,525

(June 3, 1994).

Empowered by the Stafford Act, FEMA promulgated regulations setting the parameters

for the provision of Individual Assistance, including assistance to individuals and households

(“IA” grants). See 44 C.F.R. §§ 206.110–119 (2021). Notably, in accord with this regulatory

framework, “[a] person receiving Federal assistance for a major disaster or emergency shall be

liable to the United States to the extent that such assistance duplicates benefits available to the

person for the same purpose from another source.” 42 U.S.C. § 5155(c).

2. Subject Matter Jurisdiction

“[T]he United States may not be sued without its consent and . . . [that] consent is a

prerequisite for jurisdiction.” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004)

(quoting United States v. Mitchell, 463 U.S. 205, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580

(1983)). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies

from suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994).

Sovereign immunity generally makes the United States (i.e., FEMA3) absolutely immune from

suit. In line with the mandate this doctrine imposes, FEMA contends Keita’s lawsuit seeking to

recover damages for its failure to honor his claim under his flood insurance policy is not subject

to the limited sovereign immunity waiver under NFIA, and thus, the Court lacks jurisdiction due

to sovereign immunity. Def’s Mem., at 19–20.

From a practical and important perspective, it must be understood, “[m]oreover, waivers

of sovereign immunity must be ‘unequivocally expressed’ in statutory text, and cannot simply be

implied.” Adeleke, 355 F.3d at 150 (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33,

112 S. Ct. 1011, 1014, 117 L.Ed.2d 181 (1992)). “Waivers of sovereign immunity should be

strictly construed in favor of the [g]overnment so as not to extend the waiver beyond what

Congress intended.” Mendez & DeJesus Grocery Store v. U.S. Dep’t of Agric., No. 97-CV-1099,

1997 WL 250458, at *2 (S.D.N.Y. May 12, 1997) (citing Block v. North Dakota, 461 U.S. 273,

287, 103 S.Ct. 1811, 1820, 75 L.Ed.2d 840 (1983)). “[T]he plaintiff bears the burden of

establishing that [his] claims fall within an applicable waiver.” Makarova, 201 F.3d at 113.

3 FEMA is part of the Department of Homeland Security, an executive department of the United

States. As such, claims against FEMA are claims against the United States and are subject to the

defense of sovereign immunity. See Hawaii v. Gordon, 363 U.S. 57, 58, 80 S.Ct. 1347, 4

L.Ed.2d 1409 (1963).

Although NFIA contains a partial waiver of sovereign immunity for suits against FEMA

for denial of insurance coverage under 42 U.S.C. § 4072, “courts across the country . . . have

consistently held that this provision does not permit WYO program policyholders to sue FEMA

when the WYO company denies their claim.” Foster v. Fed. Emergency Mgmt. Agency, 128 F.

Supp. 3d 717, 724 (E.D.N.Y. 2015) (collecting cases). “In other words, § 4072 extends a waiver

of sovereign immunity exclusively . . . where FEMA directly denies an application, and does not

extend to suits involving the actions of WYO companies, [like State Farm], in issuing, adjusting,

or disallowing claims.” Id. (internal quotation marks omitted); Kronenberg v. Fidelity Nat'l Ins.

Co., No. 07-CV-4877, 2008 WL 631277, at *1 (E.D. La. Mar. 5, 2008)).

The regulations implementing NFIA also support this conclusion. Pursuant to 44 C.F.R.

§ 62.23(d), “[a] WYO Company issuing flood insurance coverage” is responsible for

“arrang[ing] for the adjustment, settlement, payment and defense of all claims arising from

policies of flood insurance it issues under the Program, based upon the terms and conditions of

the Standard Flood Insurance Policy.” Further,§ 62.23(g) states that WYO companies are solely

responsible for their obligations to their insured under any flood insurance policies issued under

agreements entered into with the Administrator, such that the Federal Government is not a

proper party defendant in any lawsuit arising out of such policies.” (emphasis added)).

Turning to the 2007 flood claim, it was Keita’s WYO company State Farm, not FEMA,

that issued Keita’s SFIP policy and adjusted Keita’s 2007 flood loss claim. See Sadler Decl. ¶¶

8, 13; Ex. 1 attached to Sadler Decl., at 12–13. 4 It was also State Farm that issued Keita denial

letters regarding additional payments Keita here contends he was owed. Inexplicably, State

4 A district court may consider evidence extrinsic to the complaint in ruling on a 12(b)(1)

motion. See Makarova, 201 F.3d at 113.

Farm’s adjustment of Keita’s 2007 flood claim and denial of additional coverage form the basis

of Keita’s breach of contract cause of action asserted not only against State Farm but also

FEMA.5 Indeed, it is clear from Keita’s factual allegations that FEMA is not a proper party to

that alleged breach and the limited waiver of sovereign immunity under § 4072 does not apply to

it. See, e.g., Foster, 128 F. Supp. 3d at 727 (finding lack of subject matter jurisdiction in suit

against FEMA because plaintiffs “purchased their flood insurance policy directly from Allstate,

filed their claim for coverage . . . with Allstate, and Allstate agents adjusted, and ultimately

denied, the plaintiffs’ claim.”); Kronenberg, 2008 WL 631277, at *1–2 (finding lack of subject

matter jurisdiction over claim against FEMA because plaintiffs “did not obtain their policy from

FEMA.”); Mertz v. FEMA, Dep’t of Homeland Sec., No. 10-CV-260, 2011 WL 3563113, at *5

(D. Or. Feb. 14, 2011), report and recommendation adopted sub nom. Mertz v. FEMA, No. 10-

CV-00260, 2011 WL 3563130 (D. Or. Aug. 10, 2011) (holding the limited waiver of sovereign

immunity in 42 U.S.C. § 4072 does not apply to plaintiff’s suit against FEMA because plaintiff

“purchased the Policy from [a WYO], not the Administrator [and] his claim for monies due

under the Policy is against [the WYO], not FEMA . . . .”). Since he cannot properly invoke the

limited waiver of sovereign immunity, subject matter jurisdiction over Keita’s breach of contract

5 The only role FEMA played with respect to Keita’s 2007 flood claim was the adjudication of

Keita’s appeal of State Farm’s partial denial of his claim. See Sadler Decl. ¶ 14. But this

affirmance by FEMA does not change the analysis. Courts have held that “FEMA’s role in

adjudicating an appeal of a WYO company’s denial of coverage does not amount to

‘disallowance’ sufficient to trigger § 4072’s limited waiver of sovereign immunity.” Foster, 128

F. Supp. 3d at 726. This is because “FEMA’s disposition of an appeal under 44 C.F.R. §

62.20(b) for . . . WYO plan claims ‘is defined as the insurer’s final claim determination, and . . .

constitutes FEMA acting in an administrative review capacity, not as an insurer that denies a

claim.’” Id. (quoting Fowl, Inc. v. Fid. Nat’l Prop. & Cas. Ins. Co., No. 12-CV-283, 2012 WL

1886013, at *4 (E.D. La. May 23, 2012)); see also Bruno v. Paulison, No. 08-CV-0494, 2009

WL 377300, at *5–6 (D. Md. Feb. 12, 2009) (holding there was no subject matter jurisdiction

for suit against FEMA where WYO provided plaintiff’s insurance and “processed [plaintiff’s]

claim and finally disallowed it,” and FEMA, on appeal, affirmed the disallowance).

cause of action for his 2007 flood claim against FEMA is wanting. Therefore, this claim is

dismissed pursuant to Rule 12(b)(1).6

a. 2012 Flood Claims

“The [Stafford] Act does not contain a separate waiver of sovereign immunity.”

Konashenko v. FEMA, No. 12-CV-3034, 2014 WL 1761346, at *4 (E.D.N.Y. Apr. 29, 2014). “It

has a discretionary function exception with the same meaning as an exception set forth in the

Federal Tort Claims Act, such that courts often look to FTCA exception jurisprudence in

construing Stafford Act exceptions.” Id. (citing 42 U.S.C. § 5148 and St. Tammany Parish ex

rel. Davis v. FEMA, 556 F.3d 307, 319 (5th Cir. 2009)). Specifically, section 5148 of the

Stafford Act provides that:

The Federal Government shall not be liable for any claim based upon the exercise

or performance of or the failure to exercise or perform a discretionary function or

duty on the part of a Federal agency or an employee of the Federal Government in

carrying out the provisions of this chapter.

6 Without deciding, there appear from the record properly considered on this motion, that there

are multiple other grounds fatal to plaintiff’s claim for his alleged 2007 flood property loss. In

addition, there may be other grounds to establish sovereign immunity. Specifically, even if

FEMA were the proper defendant in this case, NFIA requires that claims arising out of the

statute be brought “within one year after the date of mailing of notice of disallowance or partial

disallowance.” 42 U.S.C. § 4072; see Melanson v. U.S. Forensic, LLC, 183 F. Supp. 3d 376, 396

(E.D.N.Y. 2016). FEMA provided a copy of the partial denial from State Farm, dated May 12,

2007. See Ex. A attached to Sadler Decl., Dkt. 64, at 12–13. Additionally, FEMA issued its

affirmance of State Farm’s adjustment of Keita’s claim on January 11, 2010. Sadler Decl. ¶ 14.

Notwithstanding, plaintiff filed the instant lawsuit in 2017, ten years after State Farm’s partial

denial was first issued to him and seven years after FEMA upheld State Farm’s decision. Keita’s

claim regarding his 2007 flood claim would, therefore, be time-barred under 42 U.S.C. § 4072.

See, e.g., Melanson, 183 F.Supp. 3d at 395–96 (finding an insured’s breach of contract cause of

action was time barred because the action was commenced more than a year followisng receipt

of notice of his insurance company’s partial denial of his claim).

Ultimately, the language as well as the legislative history of the Stafford Act “clearly preclude

discretionary actions taken under the Stafford Act from judicial review.” Konashenko, 2014 WL

1761346, at *4. Applying this understanding, FEMA argues that Keita’s claim, which can be

best divined as charging that FEMA violated the Stafford Act in determining that he was

ineligible for IA grants, Am. Compl. ¶ 6, is barred by the doctrine of sovereign immunity.

Importantly, though, not every action taken by FEMA under the authority of the Stafford

Act is instantly shielded by sovereign immunity. “To determine whether an action is a

discretionary function shielded from judicial review by the Stafford Act, ‘courts have looked to

the two-prong test set forth by the Supreme Court in United States v. Gaubert, 449 U.S. 315

(1991).’” Dubow v. FEMA, No. 16-CV-3717, 2018 WL 472816, at *6 (E.D.N.Y. Jan. 18, 2018)

(quoting Konashenko, 2014 WL 1761346, at *4). This test requires that (1) the “act ‘involve an

element of judgment or choice’” and (2) “the judgment . . . be grounded in considerations of

public policy.” In re World Trade Ctr. Disaster Site Lit., 521 F.3d 169, 195 (2d Cir. 2008)

(quoting Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000)).

With respect to this aspect of Keita’s claims against FEMA, the granting of IA grants and

relevant eligibility determinations, see 44 C.F.R. § 206.110 (2021), are fairly characterized as

agency actions committed to FEMA’s discretion, under delegation from the President. See, e.g.,

Dubow, 2018 WL 472816, at *6 (finding that “the FEMA decision to reallocate the disaster

funds . . . have been a discretionary act in disaster relief efforts . . ..”); Konashenko, 2014 WL

1761346, at *5 (“finding that FEMA’s denial of aid to [plaintiff] was a discretionary decision . .

..”). Indeed, numerous courts have held that distribution of disaster grants is a discretionary act

grounded in social and economic public policy which may not be second guessed by the courts.

See, e.g., Dubow, 2018 WL 472816, at *6; Konashenko, 2014 WL 1761346, at *5; City of San

Bruno v. FEMA, 181 F. Supp. 2d 1010, 1014–15 (N.D. Cal. 2001) (“Distributing limited funds is

inherently a discretionary responsibility.”).

But this does not end the Court’s inquiry because plaintiff’s amended complaint suggests

that FEMA’s decision was tainted by unconstitutional discrimination. See Am. Compl. at ¶ 6.

Surely, whatever discretion has been vested in FEMA to deny or award IA grants, it does not

extend so far as to permit those decisions to be based on an unconstitutional motivation. Even

where the Court’s jurisdiction on such decisionmaking is limited by statute, “[i]t is well

established that judicial review exists over allegations of constitutional violations even when the

agency decisions underlying the allegations are discretionary.” Wong v. Warden, FCI Waybrook,

171 F.3d 148, 149 (2d Cir. 1999) (per curiam) (citing Webster v. Doe, 486 U.S. 592, 603–05, 108

S.Ct. 2047, 2053–55, 100 L.Ed.2d 632 (1988)).

Not surprisingly, the Stafford Act expressly requires “FEMA to implement programs in

an equitable and impartial manner and proscribes discrimination in disbursements.” Laday v.

Ramada Plaza Hotel Laguardia, No. 07-CV-450, 2007 WL 526613, at *2 (E.D.N.Y. Feb. 13,

2007) ; see also 42 U.S.C. § 5151(a) (“[R]egulations [for federal assistance for disaster or

emergency relief] shall include provisions for insuring that the distribution of supplies, the

processing of applications, and other relief and assistance activities shall be accomplished in an

equitable and impartial manner, without discrimination on the grounds of race, color, religion,

nationality, sex, age, or economic status.”). Harmoniously, “this provision imposes an

affirmative duty on FEMA to provide assistance without discrimination and provides an

aggrieved individual with a right of action against FEMA.” Laday, 2007 WL 526613, at *2.

Obviously, in short, FEMA has no discretion to discriminate. Equally obvious, “[h]owever, the

litigant bears the burden of establishing that FEMA, in administering a disaster assistance

program, has somehow impermissibly discriminated against [him].” Id.

Here, plaintiff merely alleges discrimination without providing any factual allegations as

to the basis for any such claim. See Am. Compl. at ¶ 6. Keita has not pleaded, beyond alleging a

denial of benefits, what acts or omissions constituted discrimination, and how FEMA has

impermissibly discriminated against him. See Laday, 2007 WL 526613, at *2. As a

consequence, Keita’s request that the Court review and reverse FEMA’s denial of his IA grant

eligibility is beyond the Court’s subject matter jurisdiction. This claim is dismissed as well.

3. The Hurricane NFIP claim

Construing his complaint liberally, the Court finds that Keita may also have alleged,

though it is difficult to discern, an additional claim against FEMA for failure to meet its

obligations under NFIP. See Am. Compl. at ¶ 6. Specifically, Keita alleges “FEMA . . . did not

pay my claim for Hurricane Sandy when the policies had not expire (sic)” and that he “never

received any cancellation notice as required by Federal Law as NFIP Insured Dwelling.” Id. In

support of this claim, as previewed earlier, Keita attaches to his complaint a letter dated February

2016, drafted by his prior attorneys to FEMA challenging what is apparently a previously

received claim determination for damages to the Seaview property following Hurricane Sandy.

See Ex. A attached to Am. Compl., at 3. The letter asserts that FEMA significantly underpaid for

losses resulting from Sandy and that the insurer has failed to honor its obligations under the

policy. Id.

In addition, as was also noted earlier, Keita has attached to his complaint a letter from

State Farm, dated February 1, 2012, prior to Hurricane Sandy, which states that State Farm is in

the process of transferring all NFIP claims to NFIP Direct, the federal government’s flood

insurance program, and that all NFIP claim activity will now be handled by NFIP Direct. See

Ex. B attached to Am. Compl., at 4. Based on this letter, it appears that Keita’s challenge to his

2012 Hurricane Sandy claim originates directly from FEMA and not the WYO. As such, the

Court cannot determine at this stage, whether FEMA is not a proper party to this suit under 44

C.F.R. § 62.23(g). See Foster, 128 F. Supp. 3d at 726. It is also unclear, based on this letter,

when the denial of his Hurricane Sandy claim occurred and whether the claim is time-barred

under 42 U.S.C. § 4072. See, e.g., Melanson v. U.S. Forensic, LLC, 183 F.Supp. 3d 376, 396

(E.D.N.Y. 2016) (“[T]he SFIP establishes a one-year statute of limitations for policyholders to

commence an action, running from the date on which the insured received a written denial of his

claim.”).

Aside from these letters, and in step with the vague, ambiguous and, at times,

incomprehensible nature of his pleadings, Keita’s complaint provides no additional information

regarding this claim. Indeed, perhaps also causing puzzlement to it, FEMA has not addressed

this claim in its briefing. The Second Circuit, however, stated in its remand order that Keita’s

“amended complaint and attached exhibits was sufficient for FEMA . . . to file answers asserting

any defenses for their alleged failure to fully pay [Keita’s] insurance claims.” Dkt. 41 (emphasis

added). Although the Court still has serious doubts as to whether these allegations have

plausibly stated a claim for relief, given the mandate of the Circuit, and propped up by the

special solicitude afforded to pro se litigants, Keita’s claim against FEMA for violating NFIP

and in failing to pay his 2012 insurance claim must be allowed to proceed. For now, the motion

to dismiss is denied and FEMA is directed to comply with the Circuit’s mandate that it file an

answer.

4. Leave to Amend

Although, generally, a district court should not dismiss a pro se plaintiff’s complaint

without granting leave to amend at least once, denial of leave is proper where, construing his

pleadings and motion papers most liberally in his favor, leave to replead would be futile.

Shibeshi v. City Univ. of N.Y., 531 F. App’x. 135, 136 (2d Cir. 2013). Here, given that Keita has

already amended the complaint once before, and that any attempted amendment to the denied

claims would be futile, further leave to amend the dismissed claims shall not be granted. See

Dluhos v. Floating and Abandoned Vessel, Known as N.Y., 162 F.3d 63, 69 (2d Cir. 1998) (leave

to amend should be denied for even pro se litigants if there is repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party, or

futility of amendment).

Conclusion7

For the foregoing reasons, FEMA’s motion to dismiss is granted in part and denied in

part. Keita’s 2007 flood insurance claim and claim pursuant to the Stafford Act against FEMA

are dismissed with prejudice. The remaining claim against FEMA for violating NFIP and failing

to pay his 2012 insurance claim for the Seaview property may proceed.

7 Keita has also moved for a writ of mandamus pursuant to 28 U.S.C. § 1361 against FEMA.

Dkt. 84. “Mandamus is an extraordinary remedy, available to ‘a plaintiff only if the defendant

owes him a clear nondiscretionary duty.’” Cheney v. United States Dist. Ct. for the Dist. of

Columbia, 542 U.S. 367, 394, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (citing Heckler v. Ringer,

466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). Plaintiff has not demonstrated that

FEMA owes him a clear nondiscretionary duty, and has not alleged facts to avail himself of the

extraordinary remedy of mandamus. His motion for the writ is, accordingly, denied. See, e.g.,

Konashenko, 2014 WL 1761346, at *6 (E.D.N.Y. 2014) (denying invocation of 28 U.S.C. § 1361

as an alternative basis for jurisdiction because plaintiff has not alleged or implied any

nondiscretionary duty owed by FEMA).

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order

would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of

an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21, 8 L. Ed.

2d 21 (1962).

The parties are directed to contact Magistrate Judge Steven Tiscione for further pretrial

management of this case.

So Ordered.

Dated: Brooklyn, New York

July 26, 2021

/s/ ENV

ERIC N. VITALIANO

United States District Judge