Time Extension - Appeal

Appeal Brief

Appeal Letter

Appeal Analysis

Background                                                

In August  - September 2011, Hurricane Irene impacted the Township of Vernon (Applicant) in New Jersey.  Torrential rain and heavy flooding deposited vegetative debris throughout the area and caused damage to roads, a bridge, culverts and other permanent structures in eight qualified private communities (QPCs) located within the Applicant’s jurisdiction.  Between May and June of 2012, FEMA prepared 26 small Project Worksheets (PWs), including seven for debris removal, three for emergency protective measures, and 16 for permanent repairs to roads, a bridge and associated facilities, to document the damage sustained by the QPCs.[1]

During September 2012, FEMA determined that all 26 PWs were ineligible for reimbursement.    Twenty three were deemed ineligible on the grounds that the Applicant had not demonstrated its legal responsibility to perform the work on private roads or other private facilities within the QPCs.  The remaining three PWs were denied due to the Applicant’s failure to establish that the damage was a direct result of the disaster and not deferred maintenance or preexisting damage.[2]

First Appeal

In a letter dated December 16, 2013, the Applicant appealed FEMA’s denial of the 26 PWs[3] and argued that the Township is legally obligated to provide access to and from its roadways during the emergency situation as a matter of public safety.  The Applicant claimed that legal responsibility was established by the New Jersey Municipal Services Act (N.J.S.A. § 40:67-23.3).[4]  On February 14, 2014, the New Jersey Office of the Attorney General, Department of Law and Public Safety, Division of State Police (Grantee) forwarded the appeal to the FEMA Region II Regional Administrator (RA) and recommended it be granted.5]

On October 3, 2014, FEMA sent a final request for information (RFI) to the Grantee and Applicant.  In the RFI, FEMA notified the Applicant that there was insufficient evidence in the Administrative Record to support the assertion that the Applicant is legally responsible for emergency protective measures and road and bridge repairs undertaken by the QPCs.[6]  The Applicant responded by a letter dated December 10, 2014.  In the letter, the Applicant provided 12 exhibits to support its position that it had the legal responsibility for the work done on the QPCs.  Through this submission, the Applicant asserted it had provided adequate documentation to establish eligible scopes of work and that all damages were disaster related rather than due to deferred maintenance or preexisting damage.[7]  The Applicant argued that the NJMSA applied

because the debris on the roadway qualified under the state statutory definition of “obstruction”.[8]

In the letter, the Applicant states that it relied on representations of eligibility from various FEMA field representatives.[9] 

The FEMA Region II Regional Administrator (RA) partially granted the appeal on September 15, 2015.  The RA determined that the Applicant did have the legal responsibility to perform the work described in eight of the 26 PWs.  The RA denied the appeal for 17 of the 26 PWs, finding that the Applicant lacked the legal responsibility for work done on QPC property.

The RA also denied the remaining PW for lack of adequate documentation.  The Applicant received FEMA’s first appeal determination on September 17, 2015.[10]

Second Appeal

On December 4, 2015, the Applicant sent a letter to the Grantee, in which it requested an additional 30 days to file a second appeal.[11]  The Applicant asked for a second appeal submission date of January 15, 2016.  On December 10, 2015, the Grantee forwarded this request to FEMA Region II, and recommended approval.[12]  Then on January 7, 2016, the Applicant sent a second request for an extension of time of February 29, 2016 to submit its second appeal request to the Grantee.[13]  The Grantee forwarded this request to FEMA Region II through a letter dated January 19, 2016.[14]

On February 26, 2016, 162 days after receiving the first appeal determination, the Applicant submitted its second appeal requesting reimbursement for 14 of the 18 PWs that were denied on first appeal.[15]  The Applicant renews the argument that the New Jersey Municipal Services Act establishes the Applicant’s legal responsibility, thus requiring the Applicant to perform the work described in the 14 PWs being appealed.  The Applicant also argues that this work pertained to emergency protective measures that FEMA incorrectly categorized as Category C, instead of Category B, because of gross errors and/or omissions in the scope of work descriptions.  Accordingly, the Applicant argues it has a legal obligation to perform emergency protective measures in QPCs to eliminate or reduce immediate threats to life, public health, or safety, and therefore all the work in question is eligible for funding.  Lastly, the Applicant argues that adequate source documentation was provided for each PW under appeal, the procurement policies comply with 44 C.F.R. § 13.36, and the work described in PWs 4729, 4731 and 4736 was not the result of deferred maintenance but was instead directly attributed to the declared event.[16]  The Grantee forwarded the Applicant’s second appeal to FEMA’s Assistant Administrator for Recovery through a letter dated February 25, 2016.[17]

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423,[18] as implemented by 44 C.F.R. § 206.206, allows an eligible applicant to appeal any Public Assistance eligibility determination.  An applicant must file an appeal within 60 days of receiving notice of the appealable action.[19]  Following receipt of an applicant’s appeal, the Grantee has 60 days to forward it, together with a written recommendation, to FEMA.[20]  Neither the Stafford Act nor 44 C.F.R. 206.206 provide FEMA with the authority to grant time extensions for filing appeals.[21]

The Applicant received FEMA’s first appeal decision on September 17, 2015.  Per 44 C.F.R. § 206.206(c)(1), the Applicant had 60 days, until November 16, 2015, to file its second appeal.  The Applicant sent its second appeal letter to the Grantee on February 26, 2016, 162 days after receiving notice of the appealable action.  Although the Applicant filed two time extension requests seeking to delay filing its second appeal until February 29, 2016, FEMA lacks statutory or regulatory authority to grant extensions of time for appeals of public assistance eligibility determinations.  As such, FEMA finds that the Applicant’s second appeal is untimely and therefore is denied.

Conclusion                                                                       

The Applicant did not file its second appeal within the required timeframe established by Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1).  Consequently, the second appeal is denied.