Celestine v. FEMA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-31010
Summary Calendar
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KENNETH L. CELESTINE,
Plaintiff-Appellant,
VERSUS
FEDERAL EMERGENCY MANAGEMENT AGENCY,
UNITED STATES GOVERNMENT,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CV-1339-S)
_________________________
May 2, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
PER CURIAM:*
Kenneth Celestine appeals the FED. R. CIV.
P. 12(b)(1) dismissal of his suit against the
Federal Emergency Management Agency
(“FEMA”), asserting that the preclusion of
judicial review found at 42 U.S.C. § 5148
violates U.S. CONST. art. III. We affirm.
I.
The Robert T. Stafford Disaster Relief and
Emergency Assistance Act (“Stafford Act”),
42 U.S.C. §§ 5121 et seq., gives FEMA the
authority to distribute funds to persons who
have suffered damage in Presidentially-
declared “major disaster” areas. See 42
U.S.C. § 5170. Celestine applied for
“Temporary Housing Assistance” funds in the
aftermath of Hurricane Georges and Tropical
Storm Frances in 1998. See 42 U.S.C.
§ 5174(c). After receiving less funds than he
believed he was entitled to, Celestine sued in
Louisiana state court claiming that FEMA had
breached a promise to provide a higher level of
funds.
FEMA removed the case to federal court
pursuant to 28 U.S.C. § 1442(a) and filed a
motion to dismiss pursuant to rule 12(b)(1).
Section 308 of the Stafford Act, 42 U.S.C.
§ 5148, provides:
The Federal Government shall not be
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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liable for any claim based upon the
exercise or performance of or the failure
to exercise or perform a discretionary
function or duty on the part of a Federal
agency or any employee of the Federal
Government in carrying out the
provisions of this chapter.
Finding Celestine to be challenging such a
discretionary function, the court granted
FEMA’s motion to dismiss for want of subject
matter jurisdiction.
II.
Celestine does not dispute that the
challenged acts fall within the § 5148
limitation, but instead urges that the
provision’s restriction on judicial review
violates Article III. This assertion conflicts
with basic principles of sovereign immunity.
It is well settled that the United States
may not be sued except to the extent
that it has consented to suit by
statute. . . . Where the United States
has not consented to suit or the plaintiff
has not met the terms of the statute, the
court lacks jurisdiction and the action
must be dismissed.
Koehler v. United States, 153 F.3d 263, 265-
66 (5th Cir. 1998). See also United States v.
Mitchell, 463 U.S. 206, 212 (1983); Lehman
v. Nakshian, 453 U.S. 156, 160 (1981). While
Congress might lack authority to prevent
judicial review of unconstitutional agency
action, Celestine does not claim that FEMA
acted in an unconstitutional manner. See
Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667, 681 n.12 (1986).
The plain language of § 5148 precludes
judicial review of certain administrative
actions, and that preclusion does not violate
Article III. See Bowen, 476 U.S. at 670;
Block v. Community Nutrition Inst., 467 U.S.
340, 344-45 (1984).
AFFIRMED.

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