00-3473 Downey v. State Farm Fire & Casualty Co.

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“[T]he possibility of suit directly against the Director is created not by our decision but by the language of sec.4072 itself. It is an option, however, only when the Director has disallowed a claim. According to the FEMA’s amicus brief, the Director deals directly with claims in only some 5% of all cases; in the remainder, therefore, sec.4072 does not permit suit against the Director. Our opinion does not increase the Director’s exposure beyond what the statute itself provides. What we held is instead that sec.4072 does not allow suits directly against insurers, which cannot be called ‘the Director’ even when they administer the program on behalf of the FEMA. Nothing in the amicus brief persuades us that we should disregard the express language of sec.4072 and treat it as creating federal jurisdiction over suits against private insurers. Private entities often carry out governmental programs, but statutes authorizing suit against the Secretary of Defense do not create jurisdiction over litigation against defense contractors, and laws permitting suit against the Administrator of Social Security do not create jurisdiction of litigation against the private fiscal intermediaries in the Medicare program. We see no good reason why sec.4072 should be read to mean something that it does not say.

“Second, the possibility of suit in state court is hardly a major concern, given the option of removal under 28 U.S.C. sec.1441(b).”

Petition for rehearing denied.

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Per Curiam.