In September 2008, Hurricane Ike caused severe damage to several facilities owned by the Applicant. FEMA prepared Project Worksheets (PWs) 5200, 12004, 12377, 12846, and 12863 to document damage and obligate funds for repairs and emergency protective measures to the facilities. On September 7, 2012, FEMA deobligated funding for all five PWs, determining the Applicant’s Lessee was responsible for repairs related to the hurricane damage and accordingly the Applicant did not have legal responsibility for the repairs. On September 16, 2010, the Texas Division of Emergency Management (Grantee) notified the Applicant of the deobligations for the five PWs. In letters dated June 28, 2011, the Applicant appealed FEMA’s determinations and claimed the damage was so severe, the Lessee could not be expected to fund the repairs and alternatively, FEMA’s deobligation violated the Stafford Act § 705(c). On January 6, 2012, the FEMA Region VI Regional Administrator (RA) denied the Applicant’s appeals because it was the obligation of the Lessee to repair the damaged facilities. The RA noted that Stafford Act § 705(c) pertained to disaster grant closeout procedures and was not applicable to the deobligation in these PWs, as the projects had not entered closeout. The Grantee notified the Applicant of the RA’s first appeal decisions in letters dated February 10, 2012. The Grantee also replied to a subsequent inquiry by the Applicant regarding status updates for multiple projects on February 21, 2013, in which it reiterated that FEMA denied the appeals and that denial letters were previously sent to the Applicant in February 2012. The Applicant appealed the RA’s decisions in a letter dated October 17, 2014 and claimed that although the RA’s decisions are dated January, 2012, it only received notification on August 20, 2014 and timely filed its appeal within 60 days of that notification. The Applicant asserted it had legal authority for the repairs and FEMA could not force the Applicant to return previously received funds pursuant to Stafford Act § 705(c). The Grantee concurred in a letter dated October 23, 2014. FEMA did not receive either the Applicant’s second appeal or the Grantee’s concurrence. On December 9, 2014, the Applicant submitted a letter directly to FEMA referring to an attached appellate decision regarding Stafford Act § 705(c). On September 1, 2016, FEMA responded to the December 2014 letter and advised the Applicant that it did not submit its appeal within the statutory timeframe and also that FEMA’s policy to implement Stafford Act § 705(c) did not apply to matters where FEMA has taken a final administrative action. The Grantee responded on October 24, 2016, attaching the October 2014 appeal, and noted that its records indicated that it formally notified the Applicant of the first appeal decisions in February, 2012 and again in February, 2013, but it was unable to confirm that the Applicant received those notifications.
Authorities and Second Appeals
- Stafford Act §§ 423(a), 705(c).
- 44 C.F.R. § 206.206.
- FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures.
- Public Health Trust of Miami-Dade County, FEMA-3259-EM-FL, at 2 (Mar. 27, 2015).
- Broward County School Board of Florida, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014).
- Florida Department of Transportation, FEMA-3288-EM-FL, at 2 (June 30, 2015).
- Stafford Act § 423, as implemented by 44 C.F.R. § 206.206(c), allows an eligible applicant to appeal any PA determination within 60 days of receiving notice of the appealable action.
- The Applicant’s first appeals were submitted more than nine months after being notified of the determinations.
- Stafford Act § 705(c) provides that a State or local government shall not be liable for reimbursement or any other penalty if (1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.
- FEMA’s policy to implement Stafford Act § 705(c) does not apply to matters for which appeal rights are exhausted and FEMA has taken final administrative action.