PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COLUMBIA VENTURE, LLC,
Plaintiff-Appellant,
v.
DEWBERRY & DAVIS, LLC,
Defendant-Appellee,
and
UNITED STATES OF AMERICA,
Party-in-Interest.
No. 08-1318
UNITED STATES OF AMERICA;
AMERICAN COUNCIL OF ENGINEERING
COMPANIES; AMERICAN COUNCIL OF
ENGINEERING COMPANIES OF
METROPOLITAN WASHINGTON;
AMERICAN SOCIETY OF CIVIL
ENGINEERS; ASSOCIATION OF
FLOODPLAIN MANAGERS,
Amici Supporting Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Margaret B. Seymour, District Judge.
(3:06-cv-02525-MBS)
Argued: October 27, 2009
Decided: May 12, 2010
2 COLUMBIA VENTURE v. DEWBERRY & DAVIS
Before MOTZ and SHEDD, Circuit Judges, and
Jane R. ROTH, Senior Circuit Judge
of the United States Court of Appeals
for the Third Circuit, sitting by designation.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Motz and Senior Judge Roth joined.
COUNSEL
ARGUED: Manton McCutchen Grier, HAYNSWORTH,
SINKLER & BOYD, PA, Columbia, South Carolina, for
Appellant. Sharon Swingle, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for the United States
of America, Amicus Supporting Appellee; James F. Lee, Jr.,
LEE & MCSHANE, PC, Washington, D.C., for Appellee. ON
BRIEF: Hamilton Osborne, Jr., James Y. Becker, Sarah
Michaels Montgomery, HAYNSWORTH, SINKLER &
BOYD, PA, Columbia, South Carolina, for Appellant. Jona-
than P. Rolfe, LEE & MCSHANE, PC, Washington, D.C.;
Francis M. Mack, David A. Anderson, Mason M. Summers,
RICHARDSON PLOWDEN & ROBINSON, PA, Columbia,
South Carolina, for Appellee. Gregory G. Katsas, Assistant
Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., W. Walter Wilkins, United
States Attorney, Columbia, South Carolina, Michael Jay
Singer, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for the United States of America, Amicus
Supporting Appellee. E. Duncan Getchell, Jr., Robert L.
Hodges, Jeffrey S. Shapiro, Erin M. Sine, MCGUIRE-
WOODS, LLP, Richmond, Virginia, for American Council of
Engineering Companies, American Council of Engineering
Companies of Metropolitan Washington, American Society of
Civil Engineers, Amici Supporting Appellee. David K. Mears,
COLUMBIA VENTURE v. DEWBERRY & DAVIS 3
VERMONT LAW SCHOOL, Environmental and Natural
Resources Law Clinic, South Royalton, Vermont; Jon Kusler,
Associate Director, ASSOCIATION OF STATE WETLAND
MANAGERS, Berne, New York, for Association of Flood-
plain Managers, Amicus Supporting Appellee.
OPINION
SHEDD, Circuit Judge:
Columbia Venture, LLC appeals an order of the district
court dismissing its second amended complaint with preju-
dice. See Fed. R. Civ. P. 12(b)(6). The court concluded that
Columbia Venture’s state law claims are preempted by the
National Flood Insurance Act of 1968 ("NFIA"), 42 U.S.C.
§§ 4001 et seq. For the following reasons, we affirm.
I.
A.
We review de novo a district court’s order dismissing a
claim under Federal Rule of Civil Procedure 12(b)(6). See
Duckworth v. State Admin. Bd. of Election Laws, 332 F.3d
769, 772 (4th Cir. 2003); see also AES Sparrow Point LNG,
LLC v. Smith, 527 F.3d 120, 125 (4th Cir. 2008) (holding that
federal preemption is a legal question that we review de
novo). To survive a Rule 12(b)(6) motion, a plaintiff must
allege enough facts "to raise a right to relief above the specu-
lative level" and must provide "enough facts to state a claim
to relief that is plausible on its face." Bell Atl. Corp. v. Twom-
bly, 550 U.S. 544, 555, 570 (2007). When considering an
order dismissing a claim under Rule 12(b)(6), we assume all
factual allegations in the pleadings to be true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
4 COLUMBIA VENTURE v. DEWBERRY & DAVIS
B.
Columbia Venture owns a large parcel of property along
the Congaree River in South Carolina. In 1998, the Federal
Emergency Management Agency ("FEMA") began a reas-
sessment of flood elevation maps of this area. Pursuant to the
NFIA, FEMA hired Dewberry & Davis, LLC ("Dewberry") as
an independent contractor to provide engineering and related
services to assist in the remapping effort. Dewberry provided
the hydraulic model used to designate a large portion of
Columbia Venture’s property as part of the floodway. This
designation prevented Columbia Venture from developing
much of its property, thereby greatly reducing the property’s
value. Columbia Venture filed an administrative appeal of
FEMA’s determination pursuant to 42 U.S.C. § 4104 that was
ultimately unsuccessful. See Columbia Venture, LLC v. SC
Wildlife Fed., 562 F.3d 290 (4th Cir. 2009) (per curiam)
(holding that FEMA’s failure to timely publish notice in
accordance with § 4104 was harmless and did not warrant
vacating FEMA’s final determination).1
Columbia Venture then brought this action against Dew-
berry, alleging state law claims of professional malpractice,
civil conspiracy, injurious falsehood, and violation of the
South Carolina Unfair Trade Practices Act ("SCUTPA").
Columbia Venture contends that the hydraulic model pro-
vided by Dewberry, which was used to determine the flood
elevations, is flawed and inaccurate. Columbia Venture also
argues that FEMA concealed this information and the reasons
for the changes in the floodway determination when it pur-
sued its administrative appeal.
Pursuant to Rule 12(b)(6), Dewberry moved to dismiss the
first amended complaint on the ground that the statute of limi-
1
We note that, although not alleged in its complaint, Columbia Venture
also filed a lawsuit against Richland County, South Carolina on August
19, 2004, for injuries allegedly caused by the final determinations.
COLUMBIA VENTURE v. DEWBERRY & DAVIS 5
tations had run on Columbia Venture’s claims. The district
court denied the motion, holding that Columbia Venture had
alleged sufficient facts to support a finding that it did not have
notice of its potential cause of action against Dewberry.
Columbia Venture then filed a second amended complaint,
and Dewberry filed another motion to dismiss pursuant to
Rule 12(b)(6). In this motion, Dewberry argued that the
claims were preempted by the NFIA. Additionally, Dewberry
argued that all of Columbia Venture’s claims were time-
barred and, alternatively, that the claims otherwise failed
because Dewberry did not owe a duty of care to Columbia
Venture. Dewberry also argued that Columbia Venture failed
to properly allege a conspiracy claim, failed to properly allege
an injurious falsehood claim, and did not state a claim under
SCUTPA.
The district court dismissed the second amended complaint,
holding that the NFIA preempts Columbia Venture’s state law
claims under a theory of obstacle preemption, which is a sub-
set of implied conflict preemption. Specifically, the court held
that permitting landowners to bring state law tort claims
against FEMA’s independent contractors would obstruct the
purposes of the NFIA because such litigation would increase
the cost to FEMA and hinder its efforts to implement the
flood insurance program. Further, the court held that such
claims would destroy the balance struck by Congress in estab-
lishing the limited administrative appeals process under 42
U.S.C. § 4104. Because it held that Columbia Venture’s
claims are preempted, the court did not reach Dewberry’s
alternative theories for dismissal.
II.
The initial question we have to address is one we raised at
oral argument: whether the district court addressed the issue
of preemption prematurely under constitutional avoidance
principles. We have held that federal preemption of state law
is a constitutional question because it is premised on the
6 COLUMBIA VENTURE v. DEWBERRY & DAVIS
Supremacy Clause of the United States Constitution, and
when a party provides alternative independent state law
grounds for disposing of a case, courts should not decide the
constitutional question of preemption before considering the
state law grounds. See Bell Atl. Md., Inc. v. Prince George’s
County, 212 F.3d 863, 865 (4th Cir. 2000) (citing Ashwander
v. Tenn. Valley Auth., 297 U.S. 288, 341, 346-47 (1936)
(Brandeis, J., concurring)); see also H & R Block E. Enter.,
Inc. v. Raskin, 591 F.3d 718, 723-24 (4th Cir. 2010) (applying
Bell Atlantic to remand the case for consideration of whether
the statute applied to the plaintiff before deciding whether it
was preempted). In this context, "an independent state law
ground is one that allows us to avoid deciding a constitutional
question." MediaOne Group, Inc. v. County of Henrico, 257
F.3d 356, 361 (4th Cir. 2001).
Here, Dewberry asserts five state law grounds for dis-
missal. Three of these grounds — that Columbia Venture
failed to state a conspiracy claim, an injurious falsehood
claim, or South Carolina Unfair Trade Practices claim — are
clearly not independent state law grounds that allow us to
avoid deciding the preemption issue because they only relate
to one of the five claims. See id. at 361. Accordingly, we need
not address these issues under Bell Atlantic.
Dewberry also argues that Columbia Venture’s claims fail
because it did not owe a common law duty of care to Colum-
bia Venture. However, Columbia Venture’s SCUTPA claims
are not governed by a common law duty of care but by S.C.
Code Ann. § 39-5-140. Therefore, the lack of duty defense is
not an independent state law ground because a holding that
Dewberry owed no common law duty to Columbia Venture
would still leave the preemption issue to be resolved with
respect to the SCUTPA claim. See MediaOne Group, Inc.,
257 F.3d at 361. Accordingly, we need not address this theory
under Bell Atlantic.
Finally, Dewberry argues that all of Columbia Venture’s
claims are time-barred. Unlike Dewberry’s other grounds for
COLUMBIA VENTURE v. DEWBERRY & DAVIS 7
dismissal, this ground is potentially dispositive of all of the
claims because all claims are governed by a three-year statute
of limitations period. S.C. Code Ann. §§ 15-3-530(5), 39-5-
150. Under Bell Atlantic, this independent state law ground
must be addressed before we reach preemption. Although we
have discretion to address this issue or to remand it for con-
sideration by the district court, the district court already
denied Dewberry’s motion to dismiss on this ground with
regard to the first amended complaint. Because we see no dis-
tinction between the amended complaint and the second
amended complaint as they relate to the statute of limitations
defense, we now address it on appeal.
Dewberry bears the burden of establishing that the claims
are barred by the statute of limitations, and where the material
facts are in dispute, the issue becomes one for the jury. Brown
v. Finger, 124 S.E.2d 781, 786 (S.C. 1962). Pursuant to South
Carolina’s discovery rule, the three-year limitations period
begins to run "where the facts and circumstances of an injury
would put a person of common knowledge and experience on
notice that some right of his has been invaded or that some
claim against another party might exist." Wiggins v. Edwards,
442 S.E.2d 169, 170 (S.C. 1994) (citing Snell v. Columbia
Gun Exchange, Inc., 278 S.E.2d 333, 334 (S.C. 1981)); see
Graniteville Co., Inc. v. IH Serv., Inc., 447 S.E.2d 226, 228
(S.C. Ct. App. 1997) (holding that plaintiff could not have
known of its potential cause of action until an expert deter-
mined the cause of the fire). Under this rule, the statute of
limitations is triggered when the plaintiff discovers the injury,
not when he discovers the identity of another alleged tortfea-
sor. See Wiggins, 442 S.E.2d at 170.
Columbia Venture alleges professional malpractice among
other claims. In some professional malpractice cases, South
Carolina courts have found that the potential claim was or
should have been discovered not when the plaintiff had
knowledge of the injury but when the plaintiff had reason to
know that the injury alone was the result of wrongful conduct
8 COLUMBIA VENTURE v. DEWBERRY & DAVIS
by the professional. See Garner v. Houck, 435 S.E.2d 847,
849 (S.C. 1993) (finding that a jury question was presented as
to when the plaintiff knew or should have known that he had
a cause of action against doctors for negligence that caused a
family member’s death); True v. Monteith, 489 S.E.2d 615,
617 (S.C. 1997) (holding that there was a question of fact as
to when the client learned of the defendant attorney’s ethical
conflict).
In this case, FEMA adopted its final determination for
Columbia Venture’s property on August 20, 2001. Columbia
Venture brought this action on September 13, 2006. It alleges
that until FEMA disclosed its reliance on the hydraulic model
prepared by Dewberry in April 2005, it did not have reason
to know of Dewberry’s alleged wrongful conduct. Viewed in
the light most favorable to Columbia Venture, the factual alle-
gations of the complaint are sufficient to support a finding
that Columbia Venture did not have notice of its potential
cause of action against Dewberry until FEMA revealed its use
of the hydraulic model provided by Dewberry. Consequently,
it is not appropriate to dismiss the complaint under Rule
12(b)(6) on the ground that the claims are time-barred. There-
fore, there are no independent state law grounds on which to
dismiss the complaint.
III.
We now turn to Columbia Venture’s argument that the dis-
trict court erred in holding that its claims are preempted under
a theory of obstacle preemption. Obstacle preemption is a
type of conflict preemption authorized by the Supremacy
Clause. Anderson v. Sara Lee Corp., 508 F.3d 181, 191-92
(4th Cir. 2007). It applies "where state law ‘stands as an
obstacle to the accomplishment and execution of the full pur-
poses and objectives of Congress.’" Freightliner Corp. v.
Myrick, 514 U.S. 280, 287 (1995) (quoting Hines v. David-
owitz, 312 U.S. 52, 67 (1941)). This occurs where state law
"interferes with the methods by which the federal statute was
COLUMBIA VENTURE v. DEWBERRY & DAVIS 9
designed to reach [its] goal." Gade v. Nat’l Solid Wastes
Mgmt. Ass’n, 505 U.S. 88, 103 (1992) (emphasis added)
(internal quotation marks omitted). We have explained that
[a] decision about [obstacle preemption] requires the
court independently to consider national interests
and their putative conflict with state interests. . . .
[P]reemption under [an obstacle preemption] theory
is more an exercise of policy choices by a court than
strict statutory construction.
Abbot v. Am. Cynamid Co., 844 F.2d 1108, 1113 (4th Cir.
1988). Obstacle preemption can apply not only to positive
enactments of state law but also to state tort claims alleging
violation of a common law duty. See, e.g., Geier v. Am.
Honda Motor Co., 529 U.S. 861 (2000) (holding that negli-
gence action against a manufacturer was preempted because
it conflicted with a federal agency standard).
A.
In considering whether Columbia Venture’s claims are pre-
empted, we must start with the general presumption that Con-
gress did not intend to preempt state law. Abbot, 844 F.2d at
1112. This presumption is especially strong against "preemp-
tion of state remedies like tort recoveries, when no federal
remedy exists." Id. (citing Silkwood v. Kerr-McGee Corp.,
464 U.S. 238, 251 (1984)). Because "[t]he purpose of Con-
gress is . . . the ‘ultimate touchstone’ of a preemption analy-
sis," we first examine the purposes of the NFIA. See
Anderson, 508 F.3d at 192 (citing Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 516 (1992)).
In 1968, Congress established the National Flood Insurance
Program ("NFIP") in response to recurring flood disasters that
were "placing an increasing burden on the Nation’s
resources." Studio Frames Ltd. v. Std. Fire Ins. Co., 483 F.3d
239, 243 (4th Cir. 2007) (quoting 42 U.S.C. § 4001(a)). In the
10 COLUMBIA VENTURE v. DEWBERRY & DAVIS
face of the high risk of such disasters, private insurance com-
panies were not offering flood insurance on flood-prone prop-
erty. Id. Congress responded to this increasing problem by
creating the NFIP "which (1) makes federally subsidized
flood insurance available in flood-prone areas and (2) encour-
ages states and localities to adopt land use policies and regula-
tions that reduce the risk of flood damage." Id. (citing
§ 4001(a)-(e)). In order for communities to be eligible for fed-
eral flood insurance under the NFIA, they are required to
adopt community floodplain ordinances in accordance with
flood hazard maps promulgated by FEMA. § 4012(c).
FEMA is responsible for administering the NFIP and, in
doing so, it maps flood elevations to identify flood hazards.
See Columbia Venture, LLC, 562 F.3d at 292; 42 U.S.C.
§§ 4011, 4101. FEMA is authorized to hire private contractors
to carry out studies and investigations on its behalf. § 4102(a).
FEMA is expected to constantly reappraise the program and
to expeditiously identify and disseminate information about
flood-prone areas. See §§ 4001(e)(5), 4002(b)(2).
In creating and updating its flood maps, FEMA is first
required to publish proposed flood elevation determinations
for comment in the Federal Register and in a prominent local
newspaper. 42 U.S.C. § 4104(a). Any property owner affected
by a proposed determination who wants to challenge it is
required to appeal to the local government during the 90-day
period following publication. § 4104(b). A landowner can
appeal on only one basis: that the proposed determination is
"scientifically or technically incorrect." § 4104(b). The chief
executive officer of the community is then required to deter-
mine whether the evidence is sufficient to justify an appeal on
behalf of the community. § 4104(c). Even if the community
does not appeal the determination, the Director of FEMA is
required to review the appeals made by private persons.
§ 4104(d). The Director is required to modify his proposed
determination "as may be appropriate" after considering any
COLUMBIA VENTURE v. DEWBERRY & DAVIS 11
scientific information presented and to publish a final deter-
mination. § 4104(d), (e).
After receiving notice of the Director’s final determination,
an appellant has 60 days to appeal that determination in fed-
eral district court. § 4104(g). Significantly, "the sole relief
which shall be granted . . . is a modification of the Director’s
proposed determination." § 4104(b) (emphasis added).
Section 4104 is a product of the careful balancing of the
interests of affected landowners and communities and the pur-
poses of the NFIA. The legislative history of the appeals pro-
cedure describes Congress’ effort "to provide an equitable
balancing of all of the interests involved in the identification
and the setting of construction elevation standards for flood-
prone areas." S. Rep. No. 93-583 (1973), reprinted in 1973
U.S.C.C.A.N. 3217, 3230. See Reardon v. Krimm, 541 F.
Supp. 187, 189 (D. Kan. 1982) ("The decision by Congress to
adopt such a limited scope of appeal [under § 4104] was . . .
not a hasty one, nor is it one which may be overlooked by the
Court."). While accommodating landowners’ concerns in the
review process, Congress specifically recognized "the vested
interests of many land developers and others in avoiding or
deferring all limitations on flood plain development as long as
possible." 1973 U.S.C.C.A.N. at 3232. This interest conflicts
with the NFIP’s "need for rapid implementation of the flood
insurance program." 1973 U.S.C.C.A.N. at 3232. Therefore,
Congress took into account the competing interests when it
set forth the limited appeals process.
B.
As the district court observed, state law causes of action
against FEMA’s independent contractors undermine the pri-
mary purposes of the NFIA to strike a balance between pro-
tecting property owners’ right to appeal flood elevation
determinations and the government’s interest in minimizing
the costs inherent in updating flood maps in order to provide
12 COLUMBIA VENTURE v. DEWBERRY & DAVIS
flood insurance. The cost of defending such claims against
independent contractors in Dewberry’s position will be trans-
ferred to FEMA through increased contract fees. See Boyle v.
United Tech. Corp., 487 U.S. 500, 507-508 (1988) (finding
that the imposition of liability on government contractors will
either raise the price of contracts or cause contractors to
decline to contract). This would increase the financial burden
on the Treasury and hinder FEMA’s efforts to implement the
flood insurance program, thus destroying the balance struck
by Congress in promulgating the NFIA.
Additionally, permitting affected property owners to bring
state law tort claims against independent contractors hired by
FEMA would undermine the limited appeals process chosen
by Congress to enable FEMA to constantly reappraise the
program and to expeditiously identify and disseminate infor-
mation about flood-prone areas. The appeals provision pro-
vides for a review process under which the only basis for
challenging a proposed determination is evidence showing
that the determination is scientifically or technically incorrect,
§ 4104(b), and the only available remedy is modification of
the determination. § 4104(b).
By bringing this action against Dewberry, Columbia Ven-
ture seeks to circumvent the limits imposed under § 4104 in
order to obtain monetary relief based on alleged scientific and
technical errors made by Dewberry and relied on by FEMA
in making its flood elevation determination. As noted above,
Columbia Venture lost its administrative appeal against
FEMA pursuant to § 4104, and it now proceeds against Dew-
berry for another bite at the apple. Such litigation costs will
certainly be passed on to FEMA, and litigation involving its
flood elevation determinations will likely delay FEMA’s
identification and mapping of flood-prone areas. This result is
precisely what Congress was trying to avoid when it enacted
the limited appeals process of § 4104. We conclude that state
law tort claims against FEMA’s independent contractors
would be an obstacle to the accomplishment of the primary
COLUMBIA VENTURE v. DEWBERRY & DAVIS 13
purposes of the NFIA and § 4104. Therefore, the district court
properly concluded that Columbia Venture’s claims are pre-
empted.
IV.
Accordingly, the judgment of the district court is affirmed.
AFFIRMED