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PENNSYLVANIA v. NATIONAL ASSN. OF FLOOD INSURERS

September 10, 1976

COMMONWEALTH OF PENNSYLVANIA et al., Plaintiffs,
v.
NATIONAL ASSOCIATION OF FLOOD INSURERS, an unincorporated association, et al., Defendants



The opinion of the court was delivered by: LATCHUM

In prior proceedings in this case, all three counts of the complaint against the insurance defendants and federal defendants were found to be legally defective for various reasons and were dismissed by this Court. 378 F. Supp. 1339 (M.D.Pa. 1974). Upon appeal, the Third Circuit filed an opinion, 520 F.2d 11 (C.A. 3, 1975), and entered a judgment in lieu of a formal mandate which in relevant part reads:

 
". . . it is now here ordered and adjudged by this Court that the judgment of the said District Court, entered July 1, 1974, be, and the same is hereby reversed as to Count III as to only the federal defendants and the cause is remanded to the said District Court for a hearing as to the appropriateness of mandamus relief, and in all other respects the said judgment be and is hereby affirmed, all in accordance with the opinion of this Court."

 Count III of the complaint is a petition for a writ of mandamus against James T. Lynn, Secretary of the Department of Housing and Urban Development ("HUD") *fn2" and the United States of America (both referred to as the "federal defendants"), seeking to have this Court direct those defendants to perform their statutory duty under the National Flood Insurance Act, 42 U.S.C. § 4020, "to make information and data available to the public, and to any State or local agency or official, with regard to (1) the flood insurance program, its coverage and objectives. . . ."

 
"Under paragraph 38, the complaint alleged the total failure of the Secretary to perform the duties partially set forth in paragraph 34.
 
These paragraphs, [12, 34 and 38], when read together, set forth a sufficient allegation which, if proved, warrants mandamus relief. Cf. People ex rel. Bakalis v. Weinberger, 368 F. Supp. 721 (N.D.Ill. 1973). Although § 4020 does contain language of discretion normally not subject to review under a petition for mandamus, the discretion authorized pertains only to the time and manner of acting. Specifically, the provision mandates that 'the Secretary shall. . . take such action as may be necessary . . . .' 42 U.S.C. § 4020 (emphasis supplied). The inclusion of the phrase 'as may be necessary' does not permit disobedience to the initial directive, implicit in the statutory framework, requiring the Secretary to first consider whether or not action should be taken. Cf. Work v. United States ex rel. Rives, 267 U.S. 175, 69 L. Ed. 561, 45 S. Ct. 252 (1925); Davis Assoc., Inc. v. HUD, 498 F.2d 385 (1st Cir. 1974). It is sufficient if the Secretary, having considered whether action should be taken, then determines that no action is necessary. *fn31" But the Secretary cannot avoid taking the first step of evaluating the necessity of disseminating information. It is that step to which the Commonwealth has, in part, addressed its complaint. It is only at a hearing that the facts bearing upon this allegation may be developed. Accordingly, mandamus may issue to require the exercise of permissible discretion, see McQueary v. Laird, 449 F.2d 608, 611 (10th Cir. 1971), although the manner in which the discretionary act is to be performed is not to be directed by the court. See Larson v. Domestic and Foreign Corp., 337 U.S. 682, 695, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949)."

 From the foregoing quotation it is clear that the Court of Appeals squarely held that § 4020 only imposes upon the Secretary of HUD the non-discretionary statutory duty to consider whether or not action should be taken to publicize the flood insurance program. Once the Secretary has decided to disseminate information regarding the flood insurance program and has undertaken efforts toward that end, the Court is powerless to review either the timing, the scope, the manner or the method of those efforts because these are matters wholly within the Secretary's discretion. 520 F.2d at 26.

 The federal defendants have now moved for summary judgment and have supported their motion with extensive affidavits, made on personal knowledge by affiants *fn3" who are competent to testify to the matters stated therein. Rule 56(e), F.R.Civ.P. These affidavits and the exhibits attached thereto (Docket Items 44, 50 and 59) state in voluminous detail the manner and scope of the federal defendants' efforts to disseminate information concerning the national flood insurance program to the public and to state and local agencies and officials both prior to and after the flood which occurred in Pennsylvania in June 1972. The Court will not attempt to detail the extensive publicity which emanated from the Federal Insurance Administration relating to the flood insurance program other than to state that the undisputed record is replete with hundreds of regular and special press releases, radio and television spot announcements, status notifications, public spot announcements, distribution of question-and-answer news releases and brochures, annual status reports to members of Congress, letters to state insurance commissioners, media articles, public meetings and seminars in all ten HUD regions, all directed to calling attention to and explaining the program to the public and state and local community officials. (Docket Items 44, 50 and 59). These publicity efforts, which continued throughout the period from 1969 to date, were directed not only nationally but also particularly to the flood prone regions of Pennsylvania and to those local communities that had become eligible under the program. The Court therefore finds on the present record that extensive and conscientious efforts were made by HUD to "make information and data available to the public, and to any State or local agency or official" concerning the flood insurance program pursuant to 42 U.S.C. § 4020.

 Having found that the continuous efforts to publicize the program were in fact undertaken by HUD, it follows that the federal defendants have established without doubt that the mandatory and non-discretionary duty of the Secretary of HUD under § 4020 to consider whether or not to publicize the program was fulfilled. Thus, it is clear that consideration was given to disseminating information because action in fact was thereafter taken in a wide variety of ways to accomplish that end. *fn4" Once the duty to consider publicity has been taken followed by actual and continuous efforts to disseminate information, the Court is without power or authority to question the time and manner of acting or otherwise to direct the manner of performance because these are purely discretionary matters beyond the reach of mandamus relief.

 The same conclusion was reached in the recent case of Morris, et al. v. Secretary of HUD, Civil Action No. 74-1224 (M.D.Pa. 1975) (Docket Item 70). The Morris case was brought by several individuals against the United States under the Federal Tort Claims Act in an attempt to recover for property damage suffered by the plaintiffs as the result of Hurricane Agnes. Count I of the plaintiffs' complaint in Morris involved issues practically identical to those presented in Count III of the instant complaint, viz., whether the Secretary of HUD failed to perform his duties under the National Flood Insurance Act, 42 U.S.C. § 4001, et seq. As in this case, the question focused upon the requirements for publicizing the flood insurance program as set forth in 42 U.S.C. § 4020.

 At pages 2-3 of his order in the Morris case, Judge Muir stated:

 
"In its Order of April 10, 1975, the Court [Judge Muir] stated that although the duty to make available flood insurance information is non-discretionary, the manner in which this is accomplished would be discretionary. Consequently, if the Secretary did undertake to publicize the program, the way in which he chose to do it would qualify for the 'discretionary function' exception to the waiver of sovereign immunity found in the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671, et seq. and could not serve as a basis for a claim against the Government. It is the Court's view that the affidavits filed by the United ...

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