Macon v. Federal Emergency Management Agency et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:25-CV-00754-KDB-DCK
MICHAEL MACON,
Plaintiff,
v. MEMORANDUM AND ORDER
FEDERAL EMERGENCY
MANAGEMENT AGENCY AND
TOWN OF FAIRVIEW, NORTH
CAROLINA,
Defendants.
THIS MATTER is before the Court on Plaintiff’s Motion for a Temporary Restraining
Order (Doc. No. 2) and Defendants’ Motions to Dismiss the Amended Complaint (Doc. Nos. 20,
23).1 The Court has carefully considered these motions, the parties’ briefs and exhibits and oral
argument on the motion from the parties’ counsel on February 26, 2026. As discussed below,
Plaintiff’s request to Defendant Federal Emergency Management Agency (“FEMA”) for approval
to build a bridge on his property has not been decided by the agency, and Defendant Town of
Fairview, North Carolina (“Fairview” or the “Town”) has held several hearings on Plaintiff’s
bridge request, thereby providing Plaintiff sufficient due process. Therefore, the Court will
GRANT Defendants’ motions and DENY Plaintiff’s request for temporary injunctive relief.2
1 Defendants’ Motions to Dismiss the initial Complaint (Doc. Nos. 11, 13) are mooted by the filing
of the Amended Complaint.
2 Entering the TRO would further require this Court to contradict a North Carolina state court
ruling prohibiting Plaintiff from building the bridge, which the Court is unwilling to do with
respect to this matter of intensely local concern.
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I. LEGAL STANDARD
A. Rule 12(b)(1)
FEMA seeks dismissal of Plaintiff’s Complaint for lack of subject-matter jurisdiction under
Fed. R. Civ. P. 12(b)(1). “The United States Courts are courts of specifically limited jurisdiction
and may exercise only that jurisdiction which Congress has prescribed.” Chris v. Tenet, 221 F.3d
648, 655 (4th Cir. 2000) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). Whether the court holds subject-matter jurisdiction over an action must be considered
before addressing its merits. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999).
Ripeness is a justiciability doctrine intended to prevent the courts from entangling
themselves in premature disputes.3 See, e.g., National Park Hospitality Ass’n v. Department of
Interior, 538 U.S. 803, 807-08 (2003). Travelers Com. Ins. Co. v. Jester, No.
522CV00040KDBDSC, 2022 WL 17751426, at *4 (W.D.N.C. Dec. 19, 2022). “The ripeness
doctrine is drawn both from Article III limitations on judicial power and from prudential reasons
for refusing to exercise jurisdiction.” Id. (internal quotations and citations omitted). “[I]ts basic
rationale is to prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements.” Trustgard Ins. Co. v. Collins, 942 F.3d 195, 199 (4th Cir.
2019) (quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 148-49 (1967)). “A case fails for lack of
ripeness ‘when the parties point only to hypothetical, speculative, or illusory disputes as opposed
to actual, concrete conflicts.’” Galeas v. Noem, No. 3:25-CV-00552-KDB-SCR, 2026 WL 27286,
at *1 (W.D.N.C. Jan. 5, 2026) quoting Patel v. Noem, 788 F. Supp. 3d 950, 956 (N.D. Ill. 2025)).
In determining ripeness, “[a] case is fit for judicial decision when the issues are purely legal and
3 In addition to a lack of “ripeness,” FEMA seeks dismissal under Rule 12(b)(1) on the grounds of
sovereign immunity and lack of standing. Because Plaintiff agrees that his claims against FEMA
are not ripe, the Court need not address FEMA’s alternate grounds for dismissal.
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when the action in controversy is final and not dependent on future uncertainties.” Miller v. Brown,
462 F.3d 312, 319 (4th Cir. 2006) (internal citation omitted).
B. Rule 12(b)(6)
Fairview moves to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure
12(b)(6). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state
a claim upon which relief can be granted” tests whether the complaint is legally and factually
sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff’d sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012). In
evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes
these facts in the light most favorable to the plaintiff,” but does not consider “legal conclusions,
elements of a cause of action, ... bare assertions devoid of further factual enhancement[,] ...
unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
Construing the facts in this manner, a complaint must only contain “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal
quotations omitted). Thus, a motion to dismiss under Rule 12(b)(6) determines only whether a
claim is stated; “it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992).
C. Rule 65 - Temporary Restraining Order
A temporary restraining order (“TRO”) or preliminary injunction entered pursuant to
Federal Rule of Civil Procedure 65 is “an extraordinary remedy that may only be awarded upon a
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clear showing that the plaintiff is entitled to such relief” and may never be awarded “as of right.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 24, 32 (2008) (noting that even issuance of
a permanent injunction after trial “is a matter of equitable discretion; it does not follow from
success on the merits as a matter of right.”); Dassault Systemes SolidWorks Corp. v. Acme High
Performance Lab’ys, LLC, No. 5:24-CV-00207-KDB-DCK, 2024 WL 4271598, at *1 (W.D.N.C.
Sept. 23, 2024). The Fourth Circuit has similarly recognized that the grant of such a remedy
involves “the exercise of a very far-reaching power, which is to be applied only in [the] limited
circumstances which clearly demand it.” Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 188
(4th Cir. 2013) (en banc).
To receive an injunction prior to a final decision on the merits, a plaintiff must establish
that: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm without the
preliminary injunction; (3) the balance of equities tips in his favor; and (4) the injunction is in the
public interest. Winter, 555 U.S. at 20; Mountain Valley Pipeline, LLC v. Western Pocahontas
Properties Limited Partnership, 918 F.3d 353, 366s (4th Cir. 2019); League of Women Voters of
N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Each of these four requirements must
be satisfied.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff owns real property in Indian Trail, North Carolina, and alleges that his property is
only accessible through construction of a bridge crossing Goose Creek. (Doc. No. 15 ¶¶ 1, 7). In
2021, Fairview issued a permit for a temporary bridge to be constructed to cross Goose Creek to
access the property. (Id. ¶ 7; Doc. No. 22-4). On December 14, 2023, the permit was revoked due
to safety concerns raised by the North Carolina Department of Public Safety, Division of
Emergency Management. (Doc. Nos. 15 ¶¶ 10 -12; 22-4). Plaintiff appealed that order and the
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Fairview Town Council held three public hearings on the matter on April 10, April 30 and
September 11, 2024. (Doc. No. 22-4). On September 24, 2024, Fairview issued a Decision Letter
stating that a temporary permit, effective for 12 months, would be issued for the existing temporary
bridge, allowing Plaintiff time to pursue a Conditional Letter of Map Revision (“CLOMR”) and
Letter of Map Revision (LOMR) from FEMA. (Id.). The Temporary Permit issued on October 1,
2024. (Id.).
On August 5th, 2025, Fairview’s Town Council held a hearing to decide whether Fairview
should sign the “community acknowledgement” supporting Plaintiff’s proposed CLOMR
application. Based on the consideration of a “no-rise” analysis and citizen testimony, the Council
instructed the town administrator not to concur with the application and instead provide Plaintiff
with a letter stating the reasons for its decision. The letter was provided to Plaintiff on August 7,
2025, and Plaintiff submitted a CLOMR application to FEMA on September 10, 2025. (Doc. No.
15 ¶ 13). However, Plaintiff did not seek to renew the temporary permit so it expired on or about
October 1, 2025. (Doc. No. 22-4). At oral argument FEMA counsel represented that FEMA has
reviewed Plaintiff’s CLOMR application, has requested additional information, and will continue
to review Plaintiff’s application after receiving that information from him. Thus, Plaintiff’s
CLOMR application is still in process and it is currently unknown how FEMA will ultimately rule.
Litigation related to the bridge has been filed in both state and federal court. In this action,
Plaintiff alleges that Fairview failed to review or process the CLOMR application based on a
“preliminary, outdated hydraulic analysis” or “no-rise” analysis without review of Plaintiff’s
CLOMR application. (Doc. No. 15 ¶¶ 16–17), and he seeks to compel the Town to act “properly”
on the CLOMR application. (Id. ¶¶ 21–22). More specifically, Plaintiff has asserted three claims
against the Town for: (1) a claim for declaratory and injunctive relief under 28 U.S.C. § 2201; (2)
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a procedural due process claim under 42 U.S.C. § 1983; and (3) an equal protection (class-of-one)
claim under 42 U.S.C. § 1983. (Id. ¶¶ 23-28). As to FEMA, Plaintiff claims that the agency violated
the Administrative Procedure Act, alleging that “FEMA’s actions and inactions are arbitrary,
capricious, and an abuse of discretion under 5 U.S.C. §706.” (Id. ¶¶ 20, 24). Plaintiff has also filed
two actions in Union County (North Carolina) Superior Court relating to his use of a temporary
bridge on his real property. See Macon v. Town of Fairview, Case No. 25CV005201-890; Macon
v. Town of Fairview, Case No. 25CV004936-890. In both cases, the Superior Court has denied
Plaintiff’s request for injunctive relief relating to the use of a temporary bridge on his real property.
(See Doc. No. 14 at 2 n. 1).
The Town has also filed an action against Plaintiff to enjoin his use of the temporary bridge.
(See Doc. No. 22-4). On December 5, 2025, Union County Superior Court issued a restraining
order on behalf of the Town restricting Plaintiff’s use of the bridge as it was determined to “be [in
an] unsafe and dangerous condition and presents substantial hazard to public safety and the
environment” and because Mr. Macon “will continue to use the bridge, and permit others to do so,
unless restrained by order of this Court.” (Prelim. Inj. Ord., Town of Fairview v. Michael Macon,
25CV005962-890, Dec. 5, 2025) (Doc. No. 21-1; see also Doc. No. 15 ¶¶ 29–33).
The pending motions have been fully briefed, and the Court held oral argument on the
motions on February 26, 2026. Plaintiff and counsel for Defendants appeared at the hearing and
presented their respective arguments. The motions are ripe for the Court’s ruling.
III. DISCUSSION
A. FEMA
As described above (and acknowledged by Mr. Mason at oral argument), Plaintiff’s claims
against FEMA are premature. FEMA has not yet finished its review of Plaintiff’s CLOMR
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application, and FEMA may or may not ultimately act favorably on the application. That is, at this
point, Plaintiff can only speculate whether or not he will be harmed by FEMA’s conduct.
Therefore, Plaintiff’s claims against FEMA are not sufficiently ripe to support the Court’s
jurisdiction. See Galeas, 2026 WL 27286, at *1. Accordingly, FEMA’s motion to dismiss will be
granted and Plaintiff’s claims against the agency dismissed without prejudice.
B. The Town of Fairview
Plaintiff’s claims against the Town will also be dismissed. First, Plaintiff’s claim for
declaratory and injunctive relief under 28 U.S.C. § 2201 fails for a similar reason as Plaintiff’s
FEMA claim – the claim is not ripe. The Federal Declaratory Judgment Act provides that “[i]n a
case of actual controversy within its jurisdiction,” a federal district court “may declare the rights
and other legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought.” 28 U.S.C. § 2201(a). One of the required elements of a viable
declaratory judgment claim is that the complaint must allege “an actual controversy between the
parties of sufficient immediacy and reality to warrant issuance of a declaratory judgment.” Volvo
Const. Equipment N.A., Inc. v. CLM Equip. Co., 386 F.3d 581, 592 (4th Cir. 2004). Further,
“district courts possess discretion in determining whether and when to entertain an action under
the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional
prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995). As discussed above, FEMA
has not yet finished considering Plaintiff’s CLOMR application. Also, the Town’s final
consideration of Plaintiff’s bridge request – which has not occurred – depends, at least in part, on
FEMA’s uncertain ruling. Therefore, there is no “immediate,” actual controversy sufficient for the
Court to issue a declaratory judgment for either party, and the claim must be dismissed.
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Second, Plaintiff alleges that the Town has violated his right under the Fourteenth
Amendment to due process. The record shows otherwise. To succeed on his due process claim,
Plaintiff must prove (1) a cognizable “liberty” or “property” interest; (2) the deprivation of that
interest by “some form of state action”; and (3) that the procedures employed were constitutionally
inadequate. Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir.
2009) (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988)). Even
assuming Plaintiff has a property right in the Town’s favorable review of his bridge request,4 the
Town has indisputably provided Plaintiff with constitutionally adequate due process in the form
of numerous public hearings and a deliberative process, even if Plaintiff is unhappy with its
outcome so far. See Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013)
(“Procedural due process simply ensures a fair process before the government may deprive a
person of life, liberty, or property, … but ‘does not require certain results.’”) (internal citations
omitted); Tri Cnty. Paving, Inc. v. Ashe Cnty., 281 F.3d 430, 436 (4th Cir. 2002) (Due process of
law generally requires that a deprivation of property “be preceded by notice and opportunity for
hearing appropriate to the nature of the case.”). Therefore, Fairview is entitled to dismissal of
Plaintiff’s due process claim.
Third, Plaintiff’s equal protection claim against the Town is easily resolved. At oral
argument, upon understanding that he would have to establish the similarity of other properties
that he contends the Town may have treated differently, Plaintiff stated that “I’m fine with [the
4 This assumption is generous. If the law permits authorities to use discretion to refuse to issue a
permit, there is “no protectible property interest in the permit.” Nance v. City of Albemarle, N.
Carolina, 520 F. Supp. 3d 758, 794 (M.D.N.C. 2021) (citation omitted); accord Pulte Home Corp.
v. Montgomery Cnty., 909 F.3d 685, 692 (4th Cir. 2018) (“Just last year, in Siena Corp. v. Mayor
& City Council of Rockville, Maryland, 873 F.3d 456, 463 (4th Cir. 2017), this court reiterated the
longstanding rule that any ‘significant discretion’ left to ‘zoning authorities defeats the claim of a
property interest.’”).
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equal protection claim] being dismissed,” so long as the Court addressed his “primary due process
claim.” There is no question that an equal protection plaintiff must “demonstrate that he has been
treated differently from others with whom he is similarly situated and that the unequal treatment
was the result of intentional or purposeful government decision.” Sansotta, 724 F.3d at 542.
Accordingly, in the absence of such a showing, and with the consent of Plaintiff, his equal
protection claim will be dismissed.
C. Plaintiff’s TRO Motion
Finally, having determined that Plaintiff’s claims must be dismissed for the reasons
discussed above, he cannot establish a likelihood of success on the merits, the first required
element of a temporary restraining order. Winter, 555 U.S. at 20. Therefore, Plaintiff’s motion for
a TRO will be denied.
IV. ORDER
NOW THEREFORE IT IS ORDERED THAT:
1. Defendant FEMA’s Motion to Dismiss (Doc. No. 20) is GRANTED and Plaintiff’s
claims against FEMA are dismissed without prejudice;
2. Defendant Town of Fairview’s Motion to Dismiss (Doc. No. 23) is GRANTED
and Plaintiff’s claims against the Town are dismissed without prejudice, except for
his due process claim, which is dismissed with prejudice;
3. Plaintiff’s Motion for a Temporary Restraining Order (Doc. No. 2) is DENIED;
and
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4. The Clerk is directed to close this matter in accordance with this Order.
SO ORDERED ADJUDGED AND DECREED.
Signed: March 4, 2026
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