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DuBow v. United States Federal Emergency Management Agency

United States District Court, E.D. New York

January 18, 2018


          LAW OFFICES OF FRANCIS MCQUADE Attorneys for Plaintiffs Francis X. McQuade, Esq.

          UNITED STATES ATTORNEYS OFFICE FOR THE EASTERN DISTRICT Attorneys for Defendant Mary M. Dickman, Esq.


          Denis R. Hurley Unites States District Judge


         Plaintiffs Barbara Bernardino Dubow, Martin Gruber, Constance Dibenedetto, Mark Tannenbaum, and Edward Glister (collectively “Plaintiffs”) brought this civil rights action against the United States Federal Emergency Management Agency (“FEMA” or “Defendant”) under 42 U.S.C. § 1983, the Fourteenth Amendment of the United States Constitution, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”), 42 U.S.C. §§ 5121, et seq., and the FEMA Disaster Assistance Policy 9525.13, 44 C.F.R. § 206. Plaintiffs claim that they have been denied the right of due process by Defendant's decision to permit alternate use of FEMA funds by the South Nassau Communities Hospital (“SNCH”) that were originally granted to the now-defunct Long Beach Medical Center (“LBMC”).

         Presently before the Court is Defendant's motion to dismiss under Fed.R.Civ.P. (“Rule”) 12(b)(1) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons explained below, Defendant's motion is granted in its entirety.


         The following relevant facts are taken from the Parties' papers and the Complaint.

         Plaintiffs are residents of the Long Beach barrier island communities (“Long Beach”). (Compl. [DE 1] ¶ 10.) Long Beach was formerly served by LBMC, a “general hospital” under the definitions of New York State Public Health Law 2801(1). (Id.) On October 29, 2012, LBMC was shut down due to damage sustained during Superstorm Sandy. (Id. ¶ 11.) At some time after the storm, FEMA designated LBMC as the sub-recipient of $154, 000, 000 of disaster assistance funds[1] to restore “comparable medical facilities to the storm-affected communities.” (Compl. ¶ 12.) Plaintiffs allege that LBMC was restored and ready to function by June 2013, but the State of New York “refused to allow it to reopen.” (Id. ¶ 11.)

         On or about February 19, 2014, LBMC filed a petition in bankruptcy in the United States Bankruptcy Court for the Eastern District of New York. (Id.) On May 22, 2014, the Bankruptcy Court approved the sale of LBMC assets to South Nassau Community Hospital (“SNCH”). In re Long Beach Medical Center, No. 8-14-70593-ast, Bankr. Court Order Approving Sale of Debtor LBMC's Real Property and Designated Personal Property Assets (May 22, 2014) [DE 185]. After LBMC's bankruptcy and the sale of its assets to SNCH, FEMA approved SNCH as the substitute sub-recipient for the funds in place of LBMC. (Mem. in Supp. [DE 17] at 5.) SNCH has said that it plans to use a portion of the funds to construct a facility in Long Beach that will provide emergency medical services. (Id.) The majority of the funds will be used to expand preoperative and critical care services at SNCH's Oceanside campus, “based upon an assessment that expansion will better serve the residents of Long Beach and the surrounding communities than would the rebuilding of a full-service hospital in Long Beach.” (Id.)

         On July 5, 2016, Plaintiffs brought this action. Plaintiffs state that the “need for a fully-operational hospital on Long Beach island is heightened by the fact that there are only three routes to the mainland and hospital care.” (Compl. ¶ 11). Plaintiffs note that access to each route is controlled by a drawbridge that is frequently raised for marine traffic, and has occasionally gotten stuck in the up position. (Id.) Plaintiffs also point to the fact that these routes are often clogged with traffic from beachgoers. (Id.) Plaintiffs state two causes of action: (1) the violation of Plaintiffs' right to due process and equal protection of the laws under the Fourteenth Amendment by denying them the “value and benefit of federal money intended to repair their storm-damaged community[;]” and (2) the violation of the Stafford Act and FEMA Disaster Assistance Policy 9525.13, 44 C.F.R. § 206 by permitting an alternate use of federal monies designated to be allotted to Plaintiffs' communities. (Id. ¶¶ 19-26.)

         On March 24, 2017, Defendant brought the instant motion to dismiss under Rules 12(b)(1) and 12(b)(6).


          I. The Stafford Act and FEMA Disaster Assistance Policy

         A. Stafford Act

          The Stafford Act was enacted in 1988 “to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibility to alleviate the suffering and damage which result from [major] disasters.” 42 U.S.C. § 5151(b). A major disaster is defined as:

any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

Id. at § 5122(2). The Stafford Act becomes relevant when a Governor of an affected state finds that state and local resources are insufficient to deal with a major disaster. The Act is triggered when the Governor asks the President to declare an area a “major disaster, ” and the President declares that a major disaster or emergency exits. Id. at § 5170. The Stafford Act charges FEMA with administration of the allocated financial and physical assistance.

         B. FEMA Disaster Assistance Policy

         FEMA has adopted regulations setting forth the policies and procedures that must be followed to determine an applicant's eligibility for public assistance. Among these is the FEMA Disaster Assistance Policy 9525.13 (“Policy”), which provides “guidance on allowable uses and limitations of alternate project funds when restoration of the original damaged facility is not in the best interest of the public.” FEMA Policy 9525.13(III); see also 44 C.F.R. §206.203. The Policy also sets out the means by which an applicant may request approval of an alternate project from FEMA. See id.

         II. ...

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