The National Flood Insurance Program is not Insurance but is a Government Entity
Post 5235

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A Suit Against the NFPA Must be Filed in Federal Court

In Brian Bevel v. Federal Emergency Management Agency (FEMA) , United States District Court, Middle District of Florida, 8:25-cv-02159-JLB-CPT (November 21, 2025)Judge: John L. Badalamenti resolved the dispute over insurance coverage..
Key Facts

Parties and Claim:

Plaintiff Brian Bevel sued FEMA for breach of an insurance contract under the National Flood Insurance Program (NFIP). The policy insured Bevel’s property in Longboat Key, Florida, against flood damage.

Incident: The property sustained damage on September 26, 2024. Bevel notified FEMA, which investigated but allegedly failed to adjust the loss per policy terms, constituting a material breach.

Procedural History:

Bevel filed the breach-of-contract suit in Florida state circuit court on May 6, 2025, seeking damages exceeding $50,000. FEMA removed the case to federal court on grounds of federal officer removal under 28 U.S.C. § 1442(a)(1).

FEMA moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, citing derivative jurisdiction and sovereign immunity. Bevel failed to timely respond; the court ordered a response (Doc. 20), which was filed late (Doc. 21) but accepted in the court’s discretion.

Bevel’s Response Arguments (Rejected):

FEMA, as the removing party, should not seek dismissal. Independent jurisdiction exists under 42 U.S.C. §§ 4071–4072 (NFIP claims) or 28 U.S.C. § 1332 (diversity). Dismissal would waste resources, as Bevel could refile in federal court.
Relevant Law and Analysis

The court’s decision hinges on federal courts’ limited jurisdiction and the requirement to resolve jurisdictional issues first. The motion was treated as a factual attack under Rule 12(b)(1), allowing consideration of matters outside the pleadings. Burden to establish jurisdiction rests with the plaintiff. Dismissals for lack of jurisdiction are without prejudice.
Core Doctrines Applied

Federal jurisdiction over a removed case derives from the state court’s initial jurisdiction. If the state court lacked subject-matter jurisdiction, the federal court acquires none upon removal, even if it would have had original jurisdiction.

Florida state court lacked jurisdiction over Bevel’s NFIP breach claim, as 42 U.S.C. § 4072 vests “original exclusive jurisdiction” in the federal district court where the property is located. Bevel’s policy was issued under § 4071 (NFIP claims).
Statutory Framework

42 U.S.C. § 4071:

Authorizes issuance of Standard Flood Insurance Policies (SFIPs) by FEMA (or Write Your Own program insurers).

42 U.S.C. § 4072:

Grants federal district courts “original exclusive jurisdiction” over suits by policyholders against FEMA for disallowed claims or breach. Venue is proper in the district where the insured property is located.

28 U.S.C. § 1442(a)(1):

Allows removal by federal officers/agents acting under federal law (FEMA qualified). However, derivative jurisdiction still applies.

28 U.S.C. § 1332:

Diversity jurisdiction argued by Bevel but irrelevant due to derivative doctrine; NFIP claims are statutorily exclusive to federal question jurisdiction.
Plaintiff’s Arguments and Rebuttals

FEMA’s Removal as Estoppel:

Rejected; FEMA can seek dismissal in federal court even after removal, as it could have in state court based on § 4072.

Efficiency/Waste:

Dismissal without prejudice allows refiling in proper federal court; plaintiff “filed in the wrong court” and must comply with § 4072.
Implications

This order underscores the strict enforcement of exclusive federal jurisdiction for NFIP claims, preventing “forum shopping” via state filings followed by removal.

Plaintiffs must file directly in federal court to avoid derivative jurisdiction pitfalls. Sovereign immunity further insulates FEMA from state-court suits.

Bevel retains the right to refile in the U.S. District Court for the Middle District of Florida.
Outcome

FEMA’s Motion to Dismiss was granted; Plaintiff’s Complaint was dismissed without prejudice for lack of subject-matter jurisdiction and Plaintiff may refile in the proper federal court.
ZALMA OPINION

FEMA is not an insurance company. It is a federal government agency that provides to people in flood zones indemnity to those who pay for the protection. It is not insurance. By its creation as a federal agency suits against FEMA can only be brought in federal courts. The Plaintiff attempted to avoid federal court by filing in state court only to have FEMA remove the case to a federal court where it was dismissed for lack of jurisdiction.

(c) 2025 Barry Zalma & ClaimSchool, Inc.

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