concurring and dissenting.
I concur in Parts I, II, and III of the majority opinion.
I concur in Parts V(l) and Y(2) of the majority opinion.
The remaining parts of the opinion are Part IV and V(3); with respect to these, I respectfully dissent. They concern only the claims of an “implied covenant of good faith and fair dealing” and the “temporary conversion of money that SCIC acknowledged in its January 21,1997 letter.”
In my opinion, there is no cause of action arising under federal common law for either of those two items.
Among other reasons, acknowledging their existence under federal common law is very nearly in the teeth of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938): “There is no federal general common law.” 304 U.S. at 78, 58 S.Ct. 817.
Second, an equally strong reason is that I would not leave open on remand any option for the district court to find that such causes of action exist in this case under federal common law, thus inviting an arguable opportunity for a plaintiff to recover from the Treasury of the United States on those causes of action, a result never intended under the National Flood Insurance Program. On remand, I would require the district court to dismiss those claims as not stating a federal question cause of action.