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Second Appeal Summary
PA ID# 037-90636; Facey Medical Foundation
DSR ID# N/A; Authority of the FEMA Director
Citation: FEMA 1008-DR-CA; Mission Hills, California; Facey Medical Foundation
Cross-reference: Authority of the FEMA Director
Summary: This appeal originated with FEMAs 1998 de-obligation of $224,181 in funding for repair of the Facey Medical Foundations (Applicants) Mission Hills Medical Office Building after it was determined that the Applicant was not legally responsible for repairs to the building. The FEMA Regional Director denied the Applicants first appeal in February 1999 and the FEMA Executive Associate Director denied the second appeal in February 2000. Per 44 CFR § 206.206, this second appeal determination was to constitute the final administrative decision of FEMA.
Thereafter, by letter dated January 11, 2001, FEMA's then Director, stated that the Applicant had demonstrated that it was eligible for reimbursement for the repairs to the building and that the Applicants appeal would be settled in the amount of $224,181, thus reversing the second appeal determination made by the Executive Associate Director. The FEMA Office of Inspector General (OIG) then audited the public assistance award to the Applicant and concluded that "[t]he former Director's reversal of the former Executive Associate Director's decision contravened Federal regulation 44 CFR § 206.206(e)(1) and (e)(3), which gave the former Associate Director the last word on funding decisions that are appealed." The OIG audit went on to state that regulations have the force and effect of law "and may not be waived on a retroactive or ad-hoc basis." FEMAs regional office agreed with this audit finding and de-obligated $224,181 in funding. The Applicant appealed again, arguing that the former Director's decision was entitled to a presumption of regularity and his decision was correct and lawful. The FEMA Regional Director denied this appeal. The Applicants current appeal again argues that it was legally responsible for the work and that the former Director's decision is binding and correct.
Issues: 1) Did the FEMA Director have the authority to reverse the second appeal determination made by the Executive Associate Director?
2) Was the Applicant legally responsible for the work?
Findings: 1) No. The second level appeal decision is the final administrative decision of FEMA. As such, the Director of FEMA did not have authority to set it aside and make a new appeal determination.
3) No. The issue was addressed previously.
Rationale: 44 CFR § 206.206 and Chrysler Corp. v. Brown, 441 U.S. 281, 295-303 (1979)