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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 R. 47.5, the court has determined that this opinion should not be published and is not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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30473

Summary Calendar

ROLAND FORMAN, Etc., ET AL.,

Plaintiffs,

ROLAND FORMAN, husband of Rosemary Forman,

Plaintiff-Appellant,

versus

FEDERAL EMERGENCY MANAGEMENT AGENCY,

James Lee Witt, Director,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 96-CV-3036

March 9, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

After their southern Louisiana home was damaged by severe floods in May of 1995,

appellants Roland Forman andRosemaryForman pursued a claimfor flood damages with the Federal

Emergency Management Agency (“FEMA”) under their FEMA-written Standard Flood Insurance

Policy (“SFIP”). When their claim was denied for failure to file a Proof of Loss in a timely manner,
1The district court issued its order denying appellants’ motion for new trial on April 18, 1997.

2Appellants’ Notice ofAppealpurportsto challenge the “finaljudgment” issued by the district

court on April 18, 1997. As discussed above, the district court issued its judgment in favor of FEMA

on January 14, 1997, not on April 18, 1997. The only action the district court took on April 18, 1997

was to deny appellants’ motion for a new trial. 

FEMA contends that appellants’ Notice of Appeal raises for review only the denial of their

motion for new trial, and therefore our review ofthe district court’s action is constrained bythe abuse

of discretion standard. See Goldman v. Bosco, 120 F.3d 53, 54 (5th Cir. 1997) (“Generally, we

review the district court's ruling on a motion for new trial for an abuse of discretion . . . .”).

Appellants, however, advocate the de novo standard of review that we reserve for appeals of

summary judgment. F.D.I.C. v. Lee, 130 F.3d 1139, 1140 (5th Cir. 1997) (“[A] grant of summary

judgment [is reviewed] de novo.”).

We need not resolve the parties’ dispute concerning the posture of this appeal and the

applicable standard of review. Even if we view this case as an appeal of summary judgment, and

apply the more lenient de novo standard of review, the district court’s judgment survives scrutiny.

As explained below, appellantsfail to establish that there is a “genuine issue [of] materialfact” or that

FEMA is not “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

3FEMAhas authorityto promulgate by regulation “general terms and conditions of insurability

. . ., including . . . any . . . terms and conditions relating to insurance coverage or exclusion which

may be necessary to carry out the purposes of [the National Flood Insurance Program].” 42 U.S.C.

§ 4013.

2

appellants sued. The district court -- faced with FEMA’s unopposed motion to dismiss or, in the

alternative, motion for summary judgment -- entered judgment in favor of FEMA on January 14,

1997. Appellants subsequently filed a motion for a new trial, which the district court denied on the

ground that appellants’ filing of the Proof of Loss, even if timely, was inadequate.1 Appellants

contest the judgment of the district court, and we affirm.2

Appellants contend that the Proof ofLosstheyproffered onDecember 5, 1995, wassufficient

to allow FEMA an opportunity to evaluate the merits of their claim, and therefore the district court

erred in finding the Proof of Loss to be inadequate. Under FEMA regulations,3 strict adherence is

required to all terms of the SFIP. 44 C.F.R. §§ 61.13(a), (d), (e). The SFIP, as set forth in the
4

44 C.F.R. Pt. 61, App. A(1); 44 C.F.R. §§ 61.4(a), (b); 44 C.F.R. § 61.13(a) (“Each of the

Standard Flood Insurance Po licy forms included in Appendix ‘A’ hereto . . . and by reference

incorporated herein shall be incorporated into the Standard Flood Insurance Policy.”).

5The figures appearing in the December 5, 1995, Proof of Loss had been transcribed by the

insurance adjustor assigned to investigate appellants’ claim.

3

regulations,4provides that within 60 days after the loss (or within any extension authorized by

FEMA), the claimant must file a signed and sworn Proof of Loss listing, inter alia, (1) “the actual

cash value . . . of each damaged item of insured property . . . and the amount of damages sustained,”

and (2) “the amount . . . claim[ed] [as] due under [the] policy to cover the loss . . . .” Id.; 44 C.F.R.

Pt. 61 App. A(1), Art. IX, ¶J(3). 

Although we have serious reservations about whether appellants’ filing of the Proof of Loss

wastimelyunder the facts of this case, we do not decide this appeal on that basis. Rather, we uphold

the district court’s finding that appellants’ Proof of Loss (assuming it was filed in a timely manner)

was inadequate. By writing “THESE FIGURES ARE UNACCEPTABLE” next to the listed

amounts, appellants in effect nullified any representations as to the “actual cash value loss” or “the

net amount claimed” that these figures otherwise would have made.5 See Rec. 13. Moreover, by

failing to provide “acceptable” damage figures of their own, appellants did not provide any sworn

information whereby FEMA could evaluate “the merits oftheir claim.” Appellants’ presumption that

their claim could be processed in these circumstances is simply implausible, if not absurd.

Appellants contend in the alternative that FEMA should be estopped from asserting as a

defense their failure to meet the Proof of Loss filing requirement. We disagree. Appellants’ claim

ignores the Supreme Court’s recent holding, made under the Appropriations Clause of the

Constitution, Art. I, § 9, cl. 7, that the judiciary is powerless to uphold an “an assertion of estoppel
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against the Government by a claimant seeking [money from the Public Treasury contrary to a

statutory appropriation].” OPM v. Richmond, 496 U.S. 414, 434, 424, 110 S.Ct. 2465, 2476, 2471,

110 L.Ed.2d 387 (1990). The Court recognized that “‘not even the temptations of a hard case’ will

provide a basis for ordering recovery contrary to the terms of [a] regulation, for to do so would

disregard ‘the duty of all courtsto observe the conditions defined byCongressfor charging the public

treasury.’” Richmond, 496 U.S. at 420, 110 S.Ct. at 2469 (quoting Federal Crop Ins. Corporation

v. Merrill, 332 U.S. 380, 385-86, 68 S.Ct. 1, 3-4, 92 L.Ed. 10 (1947)) (emphasis added). 

Payments awarded under FEMA-issued flood insurance policies are indeed “a direct charge

on the public treasury.” In re Estate of Lee, 812 F.2d 253, 256 (5th Cir. 1987). FEMA, acting well

within itsstatutory rule-making authority, 42 U.S.C. § 4013, has established that a claimant must file

a Proof of Loss containing certain specified information before his claim may be considered. 44

C.F.R. Pt. 61 App. A(1), Art. IX, ¶J(3). As established above, appellants failed to satisfy this

regulatory requirement in this case. In such circumstances, there can be no estoppel of the Proof of

Loss requirement, for we cannot estop “the conditions defined by Congress for charging the public

treasury.” Richmond, 496 U.S. at 420, 110 S.Ct. at 2469 (quoting Merrill, 332 U.S. at 385-86, 68

S.Ct. at 3-4). Appellants, therefore, have not raised any genuine issues of material fact foreclosing

judgment as a matter of law in FEMA’s favor. The judgment of the district court is affirmed

accordingly.

AFFIRMED.