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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

CITY OF ALEXANDRIA; CITY OF ) CIVIL ACTION NO. 10-1849

PINEVILLE )
) JUDGE HICKS
versus )
) MAGISTRATE JUDGE HORNSBY
FEDERAL EMERGENCY )
MANAGEMENT AGENCY; U.S. DEPT. )
OF HOMELAND SECURITY; W. )
CRAIG FUGATE; U.S. ARMY CORPS )
OF ENGINEERS; LTG. ROBERT VAN )
ANTWERP )

DEFENDANTS’ REPLY TO PLAINTIFFS’

OPPOSITION TO MOTION PROTECTIVE ORDER

Defendants reply to Plaintiffs’ response to the Government’s Motion Protective Order as

follows:

In their Opposition to the Government’s Motion for Protective Order, Plaintiffs state,

“while the APA provides the waiver of sovereign immunity, these claims are based on federal

question jurisdiction, the Declaratory Judgment Act, and the Constitution.” The Declaratory

Judgment Act, 28 U.S.C. § 1331 (federal question jurisdiction) nor the Constitution provides a

waiver of sovereign immunity; only the APA waives the United States’ sovereign immunity.1

The Court has not issued a ruling on the Government’s Rule 12(b)(1) motion which, inter alia,

1
Claims against the United States based directly on Fifth Amendment violations are
barred under the doctrine of sovereign immunity. United States v. Timmons, 672 F.2d 1373 (11th
Cir. 1982), citing, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). The Declaratory Judgment Act, 28 U.S.C. § 2201, does not waive the United
States’ sovereign immunity as the Act merely provides additional remedies where jurisdiction
otherwise exists. United States v. Smith, 393 F.2d 318, 320-21 (5th Cir. 1968). Section 1331 is a
general jurisdictional statute providing the district court with jurisdiction for “all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. General
jurisdictional statutes do not independently waive the Government’s sovereign immunity. Taylor
v. United States, 2008 WL 4218770, p. 4 (5th Cir. Sept. 18, 2008).
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urging that because the APA is the only possibly valid waiver of sovereign immunity, Plaintiffs’

Constitutional claims must proceed, if at all, only under the APA as a challenge to agency action

that is “contrary to constitutional right, power, privilege, or immunity.”2 5 U.S.C. § 706(2)(B);

see also, Williams v. Roche, 468 F.Supp.2d 836, 843, 848-51 (E.D.La. 2007) (reviewing

plaintiffs’ due process challenge to agency action under APA standard), aff’d. 533 F.3d 360 (5th

Cir. 2008).

Plaintiffs claim for which they seek review under the APA is that FEMA’s actions violate

the Tenth Amendment. 5 U.S.C. § 706(2)(B). As explained below, Plaintiffs are not entitled to

discovery on this claim.

1. Review of Agency Action Under the APA is Limited to the Administrative

Record

It is well settled that APA review “is narrow and deferential, requiring only that the

agency articulate a rational relationship between the facts found and the choice made.” City of

Abilene v. EPA, 325 F.3d 657, 664 (5th Cir. 2003). Under this deferential standard, the Court

may not substitute its own judgment for that of the agency. Id.

2
Prior to a 1976 amendment to the APA, courts allowed claims seeking injunctive relief
to be brought directly against federal officials for alleged constitutional violations on the theory
that such a claim amounted to a contention that the official was acting ultra vires. See, Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949). As the courts now
recognize, this theory is no longer valid. Congress amended the APA in 1976 to clarify that the
APA provides a waiver of sovereign immunity for alledgedly unconstitutional actions, and the
“principal purpose: of the amendment “was to do away with the ultra vires doctrine and other
fictions surrounding sovereign immunity.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985).
“Actions challenging official conduct are intrinsically against the United States and are now
treated as such for all practical purposes.” Id. Consequently, “all questions off the amenability
of a federal officer to a suit for injunctive relief must be decided with reference to section 702
[APA’s sovereign immunity waiver].” Schnapper v. Foley, 667 F.2d 102, 108 (D.C.Cir. 1981).

2
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Review under the APA is narrow and deferential because the “sense of contest between

courts and administrative agencies” over factfinding in connection with administrative decisions

no longer exists:

Fact-finding by trained and specialized administrators, provided that it is

reasonable looking at the whole record, is now firmly established. Congress has
excluded the courts from the factfinding process and any attempt to turn the clock
back and renew the contest by reinsinuating the judiciary into the area now
reserved to executive expertise should be sharply rejected.

Sierra Club v. U.S. Army Corps of Eng’rs, 772 F.2d 1043, 1051 (2nd Cir. 1985) (citing J. Landis,

The Administrative Process 123 (1938)); see also, Fla. Power & Light Co. v. Lorion, 470 U.S.

729, 744 (1985) (“The factfinding capacity of the district court is . . . typically unnecessary to

judicial review of agency decisionmaking.”). “[D]e novo review” of the facts ordinarily is “an

error requiring reversal.” Sierra Club, 772 F.2d at 1052.

In challenges to final agency action, the court does not employ the standard analysis for

determining whether a genuine issue of material fact exists because, in a review of agency action,

the court is not called upon to resolve facts. Fla. Power & Light, 470 U.S. at 744. The APA

specifically contemplates that judicial review of agency action will be undertaken “based on the

record the agency presents to the reviewing court.” Fla. Power & Light Co., 470 U.S. at 743-44.

It is “a bedrock principle of judicial review that a court reviewing an agency decision should not

go outside of the administrative record.” Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n. 15 (5th

Cir. 2001). Instead, “[t]he focal point for judicial review” of agency action is “the administrative

record already in existence, not some new record made initially in the reviewing court.” Camp v.

Pitts, 411 U.S. 138, 142 (1973). Courts in the Fifth Circuit have long recognized this principle.

See, e.g., Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir. 2001) (“Review is

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generally limited to the record in existence at the time the agency made its decision”); In Re

FDIC, 58 F.3d 1055, 1062 (5th Cir. 1995) (“[C]ourts reviewing [agency] decisions normally may

not require the agency officials who participated in that decision to give testimony explaining

their action[.]”); Harris v. United States, 19 F.3d 1090, 1096, n.7 (5th Cir. 1994) (“[W]e may not

consider evidence outside the administrative record when determining whether to uphold agency

action”); Milena Ship Mgmt. Co. v. Newcomb, 995 F.2d 620, 624 (5th Cir. 1993) (“[W]e base our

review of an administrative action on the full administrative record that was before the

administrative officer at the time he made his decision”) (internal quotations omitted); La. ex rel.

Guste v. Verity, 853 F.2d 322, 327, n.8 (5th Cir. 1988) (“Nor are the courts permitted to consider

evidence outside the administrative record. Agency action is to be upheld, if al all, on the basis

of the record before the agency at the time it made its decision.”) (citations omitted); Woods v.

Fed. Home Loan Bank Bd., 826 F.2d 1400, 1406 (5th Cir. 1987) (“[C]onsideration is to be

confined to the administrative record and . . . no de novo proceeding may be held”) (quotations

omitted); Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897, 904-07 (5th Cir. 1983) (district

court erred by conducting trial de novo and substituting its judgment for that of agency “without

any explanation in its opinion of why it had found it necessary to go outside of the administrative

record”; under APA review, “[w]here an agency’s decision is based on an administrative record,

the decision should be reviewed in light of that record”); Bank of Commerce of Laredo v. City

Nat’l Bank of Laredo, 484 F.2d 284, 288 (5th Cir.1973 (“[A] reviewing court may not require the

agency officials who participated in that decision to give testimony explaining their action unless

there has been a strong showing of bad faith or improper behavior”); Belgarde v. USDA, 185

F.Supp.2d 647, 653 (W.D.La. 2001) (J. Little) (“[T]he court confines its inquiry to the evidence

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before the agency, that is, the statements in the record of the decision-making process), aff’d, 324

F.3d 328 (5th Cir. 2003); Mfg. Chemists Ass’n v. Costle, 455 F.Supp. 968, 975 (W.D.La. 1978) (J.

Veron) (striking plaintiff’s exhibits because the court was limited to the administrative record

“when deciding on the propriety and legality of an agency’s ruling”).

The Fifth Circuit has repeatedly upheld district court decisions prohibiting discovery in

cases challenging agency action. See, e.g., Woods, 826 F.2d at 1405, 1413-14 (rejecting

plaintiffs’ claim that district court erred in not permitting discovery to supplement administrative

record); Baker v. Bell, 630 F.2d 1046, 1050-51 (5th Cir. 1980) (affirming district court’s decision

solely on review of administrative record and where district court refused to permit discovery by

plaintiff class); Bank of Commerce of Laredo, 484 F.2d at 287 (rejecting claim that plaintiff was

entitled to serve discovery requests); Joseph G. Moretti, Inc. v. Hoffman, 526 F.2d 1311, 1312

(5th Cir. 1976) (rejecting plaintiff’s claim that court improperly denied discovery).

2. Plaintiffs’ Request for Discovery and “Extra-Record” Evidence

Citing Ridgley v. FEMA, 2008 WL 2547867 (E.D.La. 2008), Plaintiffs claim that they are

entitled to “extra-record” evidence and presumably, discovery because: (1) the agency action is

not adequately explained in the record before the court; (2) when the agency failed to consider

factors which are relevant to its final decision; (3) when an agency considered evidence which it

failed to include in the record; (4) when a case is so complex that a court needs more evidence to

enable it to understand the issues clearly; (5) in cases where evidence arising after the agency

action shows whether the decision was correct or not; (6) in cases where agencies are sued for a

failure to take action; and (8) (enumerated as (7) in Plaintiffs’ Opposition) in cases where relief is

at issue, especially at the preliminary injunction stage. Initially, it is observed that the Court

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found that the plaintiffs in Ridgely had not established that any of the exceptions to allow extra-

record evidence applied and that the motion for protective order was premature because unlike

the instant case, the District Judge had not been provided the opportunity to consider jurisdiction.

Id. at 4.

Plaintiff’s conclusory statement that “[a]s for exception Nos. 1, 2, and 3, neither FEMA

nor the USACE’s agency actions are sufficiently explained in any administrative record” does

not support their request for discovery. Doc. # 26, p. 6. The existence of an inadequacies in an

agency’s administrative decision or in the record supporting it do not permit district courts to

conduct extra-record proceedings and discovery. Where an administrative record is insufficient

to permit judicial review, “the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.” Fla. Power & Light Co., 470 U.S. at 744.

To fall within the ambit of “rare circumstances,” a plaintiff must demonstrate: that the agency

has failed to explain its action, effectively frustrating judicial review; (ii) that the agency has

relied on materials not included in the record; (iii) that technical terms or complex subjects need

to be explained; or (iv) bad faith or improper behavior on the part of the agency. See, Malone

Mortgage Co. America, Ltd. V. Martinez, 2003 WL 23272381, p. 3 (N.D.Tex. 2003) (internal

citations omitted).

With regard to Plaintiffs’ claim that FEMA refused to consider the effect of the USACE’s

failure to maintain or properly construct the Red River Levee System when making its final

decision to de-accredit the system under the NFIP.3 That Plaintiffs may obtain discovery on this

3
As explained in the Government’s Motion to Dismiss, to the extent that this claim
constitutes a breach of implied contract against the Corps, such claim is properly brought in the
Court of Federal Claims under the Tucker Act.

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basis completely ignores what Congress was attempting to avoid when enacting the limited

appeals process of 42 U.S.C. § 4104. See, Columbia Venture, LLC v. Dewberry & Davis, LLC,

604 F.3d 824 (4th Cir. 2010) (After an unsuccessful administrative appeal under the NFIA, a

private landowner sued an independent contractor retained by FEMA to provide engineering and

related services to assist FEMA in the remapping process. After concluding that the suit was

merely an attempt to circumvent the limits imposed under § 4104, the Fourth Circuit observed

that this type of litigation costs is what Congress was trying to avoid when it enacted the limited

appeals process of § 4104.) Id. at 832. Additionally, Plaintiffs’ allegation fails to demonstrate

that FEMA has violated its statutory obligations or failed to follow its own regulations. The

Complaint indicates just the opposite - that FEMA followed its regulations. Plaintiffs have

asserted no challenge to any regulation or statute. Plaintiffs also fail to assert any factual support

for their claim that the agency failed to consider factors which are relevant to its final decision,

and it would be difficult to discern what relevant factors were omitted in that no final agency

decision exists at this time.

Plaintiffs also assert that exception number is also applicable because the constitutional

and “fact-intensive” nature of this case are so complex that “the Court would only benefit from

additional evidence to further understand the issues.” Plaintiffs fail to provide any support for

this position. To the extent that Plaintiffs contend “Additional information which might be

discovered could only serve to clarify the issues before the Court”, such statement supports

Defendants’ position that the administrative process in this case should proceed to conclusion.

Exception number 5 is also inapplicable. The Corps acknowledges its responsibilities

with regard to the South Bank levee; therefore, no discovery is necessary on this issue. As to any

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design or construction deficiency on the East Bank levee, as stated previously, this Court is

without jurisdiction over any contractual or implied contractual obligation by the Corps and

therefore, discovery is inappropriate as to that issue. As to whether the “Federal Government”

has funded the work necessary to accredit the levees is not a proper subject for judicial review or

discovery.4 What Congress has appropriated for any project related to this litigation is not

disputed and is not a proper inquiry for discovery. Doc. #21, p. 27. Again, the absence of any

challenge to statutes or regulations involved in this action is noted and relevant here.

Exceptions numbers 6 and 8 are inapplicable for much of the same reasons set forth in the

foregoing paragraph. Plaintiffs have failed to identify a waiver of sovereign immunity for the

declaratory judgment action against the Corps.

Fifth Circuit jurisprudence, when applied to the instant case, compel the conclusion that

Plaintiffs are not entitled to discovery in this case.

Conclusion

For the reasons set forth above, discovery in this case is not proper and the Court should

grant the Defendants’ Motion for Protective Order.

4
See, Larson,(emphasizing the distinction between injunctions prohibiting illegal action
and requiring federal officials to act; “a suit may fail, as one against the sovereign, even if it is
claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if
the relief requested can not be granted by merely ordering the cessation of the conduct
complained of but will require affirmative action by the sovereign or the disposition of
unquestionably sovereign property.”) 337 U.S. at 690-91.

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Respectfully submitted,
STEPHANIE A. FINLEY
United States Attorney

BY: s/ Katherine W. Vincent

KATHERINE W. VINCENT (#18717)
Assistant United States Attorney
800 Lafayette Street, Suite 2200
Lafayette, Louisiana 70501-6832
Telephone: (337) 262-6618
Facsimile: (337) 262-6693

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of February, 2011, a copy of the foregoing
Defendants’ Reply to Plaintiffs’ Opposition to Motion Protective Order was filed electronically
with the Clerk of Court using the CM/ECF system. I also certify that according to the Court’s
Electronic Mail Notice List, there are no manual recipients.

s/ Katherine W. Vincent
Katherine W. Vincent (#18717)
Assistant United States Attorney