                        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

                                             March 9, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

CARL E. STEWART:

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

appellants Roland Forman and Rosemary Forman pursued a claim for 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,

appellants sued. The dist rict 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


   1
       The district court issued its order denying appellants’ motion for new trial on April 18, 1997.
contest the judgment of the district court, and we affirm.2

        Appellants contend that the Proof of Loss they proffered on December 5, 1995, was sufficient

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

regulations,4 provides 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

was timely under 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)

   2
    Appellants’ Notice of Appeal purports to challenge the “final judgment” 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 of the district court’s action is constrained by the abuse
of discretion standard. See Goldman v. Bosco, 120 F.3d 53, 54 (5t h Cir. 1997) (“Generally we         ,
review the district court's ruling on a motion for new trial for an abuse of discretion . . . .”).
Appellants, however, advocat e 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, appellants fail to establish that there is a “genuine issue [of] material fact” or that
FEMA is not “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
   3
       FEMA has authority to 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.
    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 Policy forms included in Appendix ‘A’ hereto . . . and by reference
incorporated herein shall be incorporated into the Standard Flood Insurance Policy.”).
                                                    2
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 of their 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

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 courts to observe the conditions defined by Congress for 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 its statutory 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


    5
     The figures appearing in the December 5, 1995, Proof of Loss had been transcribed by the
insurance adjustor assigned to investigate appellants’ claim.
                                                   3
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 mat ter of law in FEMA’s favor. The judgment of the district court is affirmed

accordingly.

AFFIRMED.




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