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SEGALL v. RAPKIN

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


February 6, 1995

STEPHEN SEGALL and WENDY SEGALL, Plaintiffs, against MANUAL RAPKIN, individually and d/b/a CRANFORD FARM, CRANFORD FARM, INC., GOODKIND & O'DEA, INC., ATZEL, SCATAZZA & ZEIGLER, P.C., and TOWN OF CLARKSTOWN, a municipal corporation, Defendants. BART SILVERMAN and KATHERINE SILVERMAN, Plaintiffs, - against - MANUAL RAPKIN, individually and d/b/a CRANFORD FARM, CRANFORD FARM, INC., GOODKIND & O'DEA, INC., ATZEL, SCATAZZA & ZEIGLER, P.C., and TOWN OF CLARKSTOWN, a municipal corporation, Defendants.

The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 I

 These related cases arise from repeated flooding of plaintiffs' homes and property by a nearby tributary of what is known as the Demarest Kill. Plaintiffs assert the flooding occurs because defendants Manual Rapkin ("Rapkin") and Cranford Farm ("Cranford"), improperly constructed the homes 3.5 feet below the base flood water surface elevation.

 Plaintiffs additionally allege that the improper construction of the homes was caused by errors in a "Flood Insurance Study" completed by defendant Goodkind and O'Dea (hereinafter "Goodkind") at the request of the Federal Emergency Management Agency ("FEMA") which administers the National Flood Insurance Program under 42 USC 4001. Jurisdiction is based on 28 USC 1331.

 Defendant Goodkind has moved to dismiss plaintiffs' 42 USC 4001 claims on the grounds that the statute and the National Flood Insurance Program do not create a private right of action. The motion is granted and both cases remanded to state court. *fn1" The Clerk is directed to remove these cases from the active calendar of the court. *fn2"

 II

 Between 1978 and 1983 FEMA employed the services of defendant Goodkind to complete a "Flood Insurance Study" of certain areas of defendant Town of Clarkstown ("Clarkstown") in connection with its application to participate in the National Flood Insurance Program.

 Based on the contents of the study, FEMA issued a "Flood Hazard Boundary Map" which indicated the base flood elevation for certain property including the land on which the plaintiffs' homes were constructed. Based on the data provided on the map, Clarkstown informed defendants Rapkin and Cranford that the base flood water surface elevation for the plaintiffs' property was 105 feet above sea level. Plaintiffs allege this figure arrived at by FEMA was inaccurate due to survey errors by Goodkind, and that as a result the floor of plaintiffs' homes were constructed 3.5 feet below the base flood water surface elevation.

 III

 In determining whether 42 USC 4001 creates a private cause of action the "central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action." Touche Ross & Co v. Redington, 442 U.S. 560, 575, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). Where congressional intent cannot be inferred from the language or structure of the statute and no other source of intent exists, a private right of action cannot be implied. Thompson v. Thompson, 484 U.S. 174, 179, 98 L. Ed. 2d 512, 108 S. Ct. 513 (1988).

 While Section 4001 creates no private right of action explicitly, Congress did explicitly state the reasons for enacting the National Flood Insurance Act. Among those listed were to encourage local governments to limit flood damages by restricting and guiding development of land susceptible to flooding. 42 USC 4001(e).

 The purpose of Section 4001 does not impliedly create a private right of action. It is not necessary for private parties to have a right of action under the Act to achieve or further its purposes. Indeed, to allow plaintiffs to hold Goodkind liable under Section 4001 would discourage future surveyors from reporting their views concerning flood levels to FEMA.

 In addition, courts have consistently held that no private cause of action exists for breach of duty by a government contractor for violation of the underlying agency's statutory duties. See Arvai v. First Federal, 698 F.2d 683 (4th Cir 1983) (no private right of action by a borrower against a lender for failure to comply with the requirements of 42 USC 4012 and 4104); Till v. Unifirst Fed. Sav. & Loan, 653 F.2d 152, 155-56, 158-61 (5th Cir 1981) (no implied private right of action by borrowers against federally insured savings and loan association). Roberts v. Cameron-Brown Co., 556 F.2d 356, 360-62 (5th Cir 1977).

  IV

 Since this court's jurisdiction under 28 USC 1331 is based solely on the plaintiffs' dismissed claims arising under 42 USC 4001 and no basis for exercising pendant or supplemental jurisdiction under 28 USC 1367 has been suggested, no jurisdiction remains.

 SO ORDERED.

 Dated: White Plains, New York

 February 6, 1995

 /s/ John S. Martin, U.S.D.J. for

 VINCENT L. BRODERICK, U.S.D.J.


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