Forman v. FEMA

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-30473 Summary Calendar

ROLAND FORMAN, Etc., ET AL., Plaintiffs, ROLAND FORMAN, husband of Rosemary Forman, Plaintiff-Appellant, versus FEDERAL EMERGENCY MANAGEMENT AGENCY, James Lee Witt, Director, Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana March 9, 1998 Before JONES, SMITH, and STEWART, Circuit Judges.

CARL E. STEWART: After their southern Louisiana home was damaged by severe floods in May of 1995, appellants Roland Forman and Rosemary Forman pursued a claim for flood damages with the Federal Emergency Management Agency (“FEMA”) under their FEMA-written Standard Flood Insurance Policy (“SFIP”). When their claim was denied for failure to file a Proof of Loss in a timely manner, appellants sued. The dist rict court -- faced with FEMA’s unopposed motion to dismiss or, in the alternative, motion for summary judgment -- entered judgment in favor of FEMA on January 14, 1997. Appellants subsequently filed a motion for a new trial, which the district court denied on the ground that appellants’ filing of the Proof of Loss, even if timely, was inadequate.1 Appellants contest the judgment of the district court, and we affirm.2 Appellants contend that the Proof of Loss they proffered on December 5, 1995, was sufficient to allow FEMA an opportunity to evaluate the merits of their claim, and therefore the district court erred in finding the Proof of Loss to be inadequate. Under FEMA regulations,3 strict adherence is required to all terms of the SFIP. 44 C.F.R. §§ 61.13(a), (d), (e). The SFIP, as set forth in the regulations,4 provides that within 60 days after the loss (or within any extension authorized by FEMA), the claimant must file a signed and sworn Proof of Loss listing, inter alia, (1) “the actual cash value . . . of each damaged item of insured property . . . and the amount of damages sustained,” and (2) “the amount . . . claim[ed] [as] due under [the] policy to cover the loss . . . .” Id.; 44 C.F.R. Pt. 61 App. A(1), Art. IX, ¶J(3).

Although we have serious reservations about whether appellants’ filing of the Proof of Loss was timely under the facts of this case, we do not decide this appeal on that basis. Rather, we uphold the district court’s finding that appellants’ Proof of Loss (assuming it was filed in a timely manner) was inadequate. By writing “THESE FIGURES ARE UNACCEPTABLE” next to the listed amounts, appellants in effect nullified any representations as to the “actual cash value loss” or “the net amount claimed” that these figures otherwise would have made.5 See Rec. 13. Moreover, by failing to provide “acceptable” damage figures of their own, appellants did not provide any sworn information whereby FEMA could evaluate “the merits of their claim.” Appellants’ presumption that their claim could be processed in these circumstances is simply implausible, if not absurd.

Appellants contend in the alternative that FEMA should be estopped from asserting as a defense their failure to meet the Proof of Loss filing requirement. We disagree. Appellants’ claim ignores the Supreme Court’s recent holding, made under the Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, that the judiciary is powerless to uphold an “an assertion of estoppel against the Government by a claimant seeking [money from the Public Treasury contrary to a statutory appropriation].” OPM v. Richmond, 496 U.S. 414, 434, 424, 110 S.Ct. 2465, 2476, 2471, 110 L.Ed.2d 387 (1990). The Court recognized that “‘not even the temptations of a hard case’ will provide a basis for ordering recovery contrary to the terms of [a] regulation, for to do so would disregard ‘the duty of all courts to observe the conditions defined by Congress for charging the public treasury.’” Richmond, 496 U.S. at 420, 110 S.Ct. at 2469 (quoting Federal Crop Ins. Corporation v. Merrill, 332 U.S. 380, 385-86, 68 S.Ct. 1, 3-4, 92 L.Ed. 10 (1947)) (emphasis added).

Payments awarded under FEMA-issued flood insurance policies are indeed “a direct charge on the public treasury.” In re Estate of Lee, 812 F.2d 253, 256 (5th Cir. 1987). FEMA, acting well within its statutory rule-making authority, 42 U.S.C. § 4013, has established that a claimant must file a Proof of Loss containing certain specified information before his claim may be considered. 44 C.F.R. Pt. 61 App. A(1), Art. IX, ¶J(3). As established above, appellants failed to satisfy this regulatory requirement in this case. In such circumstances, there can be no estoppel of the Proof of Loss requirement, for we cannot estop “the conditions defined by Congress for charging the public treasury.” Richmond, 496 U.S. at 420, 110 S.Ct. at 2469 (quoting Merrill, 332 U.S. at 385-86, 68 S.Ct. at 3-4). Appellants, therefore, have not raised any genuine issues of material fact foreclosing judgment as a mat ter of law in FEMA’s favor. The judgment of the district court is affirmed accordingly.

AFFIRMED.