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The Fifth Circuit Court of Appeals ruled this week that displaced hurricane evacuees may not sue the Federal Emergency Management Agency (FEMA) for formaldehyde exposure under the Federal Tort Claims Act (FTCA) because the plaintiffs lacked subject matter jurisdiction.
The plaintiffs, evacuees who were placed in FEMA Emergency Housing Units (EHUs) in Mississippi and Alabama, filed a class action FEMA trailer lawsuit against over 100 defendants, including the federal government, alleging that the EHU trailers that FEMA provided for displaced Gulf Coast residents after Hurricanes Katrina and Rita jeopardized the plaintiffs' health.
The government moved to dismiss the plaintiffs' FTCA claims for lack of subject-matter jurisdiction, and a district court granted the motion. This week, the Fifth Circuit Court of Appeals affirmed the district court.
While the FTCA is considered to be a waiver of the government's sovereign immunity, federal law provides that the United States is liable in the same manner and to the same extent as a private individual under like circumstances. Thus if a private person would be liable to a plaintiff under the laws of the state where the act or omission occurred, then the government can be liable.
Mississippi and Alabama laws both provide that political subdivisions and agencies can only be liable for death or injury in cases of willful misconduct. Both states also shield a person "who voluntarily and without compensation" provides shelter or assistance to another person in a natural disaster from liability for injuries resulting from the emergency use of the shelter.
The plaintiffs argued that FEMA did not provide the EHUs "voluntarily and without compensation" because the President directed FEMA to provide assistance and services to hurricane victims under the Stafford Act, and the government compensated FEMA for the EHUs through federal tax dollars. The Fifth Circuit didn't buy the argument.
The court reasoned that the EHUs were provided voluntarily because FEMA was under no contractual or legal obligation to provide EHUs to disaster victims, and the government did not receive compensation from the disaster victims in exchange for the use of the EHUs.
Before you file a FTCA claim on behalf of a similarly-situated disaster victim, review applicable state emergency statutes to determine if your client's claim will be barred.