    14-2559
    Suzanne McCrory v. Administrator of the Federal Emergency Management Agency of the United States Department of Homeland Security


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 29th day of April, two thousand fifteen.

    PRESENT:
                RICHARD C. WESLEY,
                DEBRA ANN LIVINGSTON,
                DENNY CHIN,
                      Circuit Judges.
    _____________________________________

    Suzanne McCrory,

                                  Plaintiff-Appellant,

                        v.                                                                                 14-2559

    Administrator of the Federal Emergency
    Management Agency of the United States
    Department of Homeland Security,

                                  Defendant-Appellee.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                                                          Suzanne McCrory, pro se,
                                                                                      Mamaroneck, NY.

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FOR DEFENDANT-APPELLEE:                                       Shane P. Cargo (Emily E. Daughtry,
                                                              on the brief), for Preet Bharara,
                                                              United States Attorney for the
                                                              Southern District of New York, New
                                                              York, NY.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Seibel, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Suzanne McCrory, proceeding pro se, appeals the district court’s judgment

dismissing her complaint pursuant to the National Flood Insurance Act (“NFIA”), 42 U.S.C.

§ 4001 et seq., for lack of subject matter jurisdiction, based on her lack of standing. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       “We review de novo a decision as to a plaintiff’s standing to sue based on the allegations of

the complaint and the undisputed facts evidenced in the record.” Rajamin v. Deutsche Bank Nat’l

Trust Co., 757 F.3d 79, 84-85 (2d Cir. 2014). “A case is properly dismissed for lack of subject

matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional

power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In

resolving the question of subject matter jurisdiction, “the district court can refer to evidence

outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of

proving by a preponderance of the evidence that it exists.” Luckett v. Bure, 290 F.3d 493, 497 (2d

Cir. 2002) (citations omitted).

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       As a threshold inquiry, a federal court must determine that the plaintiff has constitutional

Article III standing prior to determining issues of statutory standing or the subsequent merits of the

case. See Alliance For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 87 (2d Cir.

2006). Article III standing contains three minimum requirements: (1) the plaintiff must have

suffered an injury in fact (an invasion of a legally protected interest) that is concrete and

particularized and actual or imminent, not conjectural or hypothetical; (2) that is causally

connected to the defendant’s action; and (3) likely will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “[W]hen the plaintiff is not [herself]

the object of the government action or inaction [she] challenges, standing is not precluded, but it is

ordinarily substantially more difficult to establish.” Id. at 562 (internal quotation marks and

citations omitted).

       McCrory’s reliance on her statutory standing under § 4104(g) and the NFIA does not

address whether she has Article III standing under the Constitution. For that inquiry, McCrory

must establish an injury in fact, caused by the FEMA determinations, the harm of which is

redressable if those determinations are vacated. McCrory cannot establish an injury in fact as to

either FEMA determination, for the reasons stated by the district court. See McCrory v. Adm'r of

Fed. Emergency Mgmt. Agency of U.S. Dep’t of Homeland Sec., 22 F. Supp. 3d 279, 290–92

(S.D.N.Y. 2014).

       Accordingly, we AFFIRM the judgment of the district court.


                                               FOR THE COURT:
                                               Catherine O=Hagan Wolfe, Clerk


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