McCrory v. Administrator of Federal Emergency Management Agency of United States Department of Homeland Security

14-2559
Suzanne McCrory v. Administrator of the Federal Emergency Management Agency of the United States Department of Homeland Security
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 29th day of April, two thousand fifteen.
PRESENT:
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
Suzanne McCrory,
Plaintiff-Appellant,
v. 14-2559
Administrator of the Federal Emergency
Management Agency of the United States
Department of Homeland Security,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Suzanne McCrory, pro se,
Mamaroneck, NY.
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FOR DEFENDANT-APPELLEE: Shane P. Cargo (Emily E. Daughtry,
on the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Seibel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Suzanne McCrory, proceeding pro se, appeals the district court’s judgment
dismissing her complaint pursuant to the National Flood Insurance Act (“NFIA”), 42 U.S.C.
§ 4001 et seq., for lack of subject matter jurisdiction, based on her lack of standing. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.
“We review de novo a decision as to a plaintiff’s standing to sue based on the allegations of
the complaint and the undisputed facts evidenced in the record.” Rajamin v. Deutsche Bank Nat’l
Trust Co., 757 F.3d 79, 84-85 (2d Cir. 2014). “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). In
resolving the question of subject matter jurisdiction, “the district court can refer to evidence
outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Luckett v. Bure, 290 F.3d 493, 497 (2d
Cir. 2002) (citations omitted).
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As a threshold inquiry, a federal court must determine that the plaintiff has constitutional
Article III standing prior to determining issues of statutory standing or the subsequent merits of the
case. See Alliance For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 87 (2d Cir.
2006). Article III standing contains three minimum requirements: (1) the plaintiff must have
suffered an injury in fact (an invasion of a legally protected interest) that is concrete and
particularized and actual or imminent, not conjectural or hypothetical; (2) that is causally
connected to the defendant’s action; and (3) likely will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “[W]hen the plaintiff is not [herself]
the object of the government action or inaction [she] challenges, standing is not precluded, but it is
ordinarily substantially more difficult to establish.” Id. at 562 (internal quotation marks and
citations omitted).
McCrory’s reliance on her statutory standing under § 4104(g) and the NFIA does not
address whether she has Article III standing under the Constitution. For that inquiry, McCrory
must establish an injury in fact, caused by the FEMA determinations, the harm of which is
redressable if those determinations are vacated. McCrory cannot establish an injury in fact as to
either FEMA determination, for the reasons stated by the district court. See McCrory v. Adm'r of
Fed. Emergency Mgmt. Agency of U.S. Dep’t of Homeland Sec., 22 F. Supp. 3d 279, 290–92
(S.D.N.Y. 2014).
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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