New Arbitration Panels for FEMA Public Assistance Program Concerning Hurricanes Katrina and Rita
Release Date: August 6, 2009
Release Number: FNF-09-036
On August 6, Secretary Napolitano announced a new arbitration process to expedite resolution of outstanding Federal Emergency Management Agency (FEMA) Public Assistance projects stemming from Hurricanes Katrina and Rita.
The new arbitration process is designed to further recovery efforts by providing final adjudication of disputes arising from Public Assistance projects by an independent, neutral panel of arbitrators.
The following are frequently asked questions regarding the arbitration panels.
What matters are eligible for review by an arbitration panel?
A panel may review and decide only those disputes involving Public Assistance projects in excess of $500,000 arising from Hurricanes Katrina and Rita in the Gulf Coast states of Alabama, Louisiana, Mississippi and Texas.
In addition, and for a limited time, applicants who had a first or second appeal pending before FEMA on or after the effective date of the American Recovery and Reinvestment Act (i.e., February 17, 2009) may avail themselves of review of their dispute by an arbitration panel, even if a final written decision has since been rendered by FEMA. However, disputes that received a final written decision from FEMA on a second appeal before February 17, 2009 are not eligible for review by an arbitration panel.
Who can request review by an Arbitration Panel?
Any eligible applicant for federal Public Assistance funding who disputes a FEMA project eligibility determination and/or amount of the project award and who is eligible to avail themselves of the FEMA appeals process may request review of that matter by an arbitration panel instead.
How does this new arbitration process relate to the current administrative appeals process?
The arbitration process is in lieu of the current administrative appeals process. If an applicant requests arbitration, the applicant is agreeing to forgo seeking a formal appeal. However, applicants who have an appeal currently pending may for a limited time elect to withdraw that appeal and have the matter reviewed by an arbitration panel. Such applicants will need to elect to do so by October 30, 2009.
When and how does one request review by an arbitration panel?
Within 30 days of notice of a FEMA eligibility determination and/or award, an applicant must make a written request for arbitration, with supporting documentation, to the arbitration administrator (while simultaneously submitting the request to the state and the appropriate FEMA regional administrator). Within 15 days of receiving the applicants request, the State may submit a written recommendation to the arbitration administrator. The parties must submit filings by either courier or overnight delivery service. All overnight deliveries, except by the United States Postal Service (USPS), should be addressed to CBCAs street address (Sixth Floor 1800 M Street, NW Washington, DC 20036). USPS overnight deliveries must be addressed to the CBCA mailing address (1800 F Street, NW Washington, DC 20405). The CBCA requires that each party submit three copies of all filings to the CBCA, and one copy each to the other parties.
Applicants who currently have an appeal pending may, for a limited time, elect to withdraw that appeal and request to have the matter reviewed by an arbitration panel. Such applicants will need to elect to do so by October 30, 2009.
Additional information regarding requests can be found at www.fema.gov/government/grant/pa/arbitration.
How many panels are there and who sits on an arbitration panel?
Multiple third-party, neutral panels will be established as the caseload dictates. Each arbitration panel will consist of three arbitrators, independent from DHS, drawn from the federal pool of administrative law judges and similar officials who currently serve on boards, commissions and agencies.
The Civilian Board of Contract Appeals (CBCA) will provide the primary pool of arbitrators. The CBCA regular docket includes adjudicating disputes between federal agencies and their contractors, predominantly construction contractors. The judges on the CBCA have a strong background in adjudicating contract and construction disputes involving large sums. The chief judge is Judge Stephen Daniels who has been practicing law for 37 years.
Where will the arbitration take place? Are the proceedings open to the public?
Most of the arbitrations will be decided on the written statements provided by the parties. If any of the parties requests an oral hearing, hearings may be held telephonically or by other electronic means so long as the parties may hear and respond to each other or in-person where the arbitration panel is located. Most of the arbitration panels are expected to be located in Washington, D.C. The arbitration proceedings are not open to the public, but the final decisions will be available to the public.
When will the first arbitration panel be ready to review disputes?
Eligible applicants are now able to request review of their dispute by an arbitration panel, and the first arbitration panels are ready to receive requests for arbitration. The Civilian Board of Contract Appeals (CBCA) will be providing the primary pool of arbitrators.. The judges on the CBCA have a strong background in adjudicating contract and construction disputes involving large sums.
What information will the arbitration panels consider?
Each arbitration panel will consider all relevant written statements and supporting documentation from the applicant, the State, and the FEMA Regional Administrator. Each panel will also provide all parties the opportunity to make an oral presentation (telephonically or in-person). Finally, each arbitration panel may seek the advice or expertise of independent scientific or technical subject matter experts, such as engineers and architects.
What procedures will the arbitration panels follow? Are decisions made by majority vote?
The arbitration panels will follow procedures set forth in the regulations at 44 CFR 206.209 (g) through (l). Separate guidance may be issued to supplement these regulations. See 44 CFR 206.209 (m).
How long will the arbitration panels have to make a decision?
Each panel is expected to make every effort to reach a decision within 60 days of reviewing the written material or hearing oral testimony, whichever comes later. However, in highly technical or complex matters, it may take an arbitration panel longer to reach a decision.
Is an arbitration panels decision final?
The decision of the majority of the arbitration panel is a final decision, binding on the parties. The final decision is not subject to further administrative or judicial review, except in some very limited exceptions permitted by the Alternative Dispute Resolution Act, 9 U.S.C. § 10.
Does the arbitration process apply to all Gulf Coast states?
The panels will consider eligible pending disputes involving Public Assistance projects in all Gulf Coast states with disaster declarations for Hurricanes Katrina and Rita.
For more information on the process to request arbitration, please visit: www.fema.gov/government/grant/pa/arbitration.shtm
Last Modified: Monday, 31-Aug-2009 16:57:13