Timeliness

Appeal Brief

Summary Paragraph

On October 24, 2005, Hurricane Wilma struck Florida, causing damage to a number of the Applicant’s buildings.  FEMA prepared Project Worksheet (PW) 8956 to address roof damage to four buildings, including Kennedy Hall.  The PW estimated the damage at Kennedy Hall to be 3,000 square feet of the east and west lower roof, and the scope of work (SOW) provided for replacement of that amount of roofing at an estimated cost of $36,000.  At closeout, the Applicant sought reimbursement of an additional $640,531.00 in costs associated with recoating all 19,296 square feet of the Kennedy Hall main roof.  FEMA determined that the recoating was outside the SOW and denied those costs.  The Applicant appealed and additionally requested reimbursement of $62,893.00 for expenses that it incurred, but neglected to submit at closeout.  The RA denied the appeal because (1) it was untimely, (2) recoating the main roof was outside the SOW, and (3) the additional $62,893.00 was outside the SOW and insufficiently documented.  The Applicant filed a second appeal, which it also presented orally.  In response to a request from FEMA, it submitted supplemental documents, including the invoices related to the $62,893.00, though it maintains that it previously submitted them.

Authorities and Second Appeals

•  Stafford Act § 423.
• 44 C.F.R. § 206.206(c)(1), (2).
• Palisades Med. Ctr., FEMA-4086-DR-NJ, at 4.
• Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4.
• City of Lake Mary, FEMA-1539-DR-FL, at 4.

Headnotes

•  Pursuant to 44 C.F.R. § 206.206(c)(2), grantees have 60 days to submit first appeals to FEMA.
  •  Here, the Grantee did not forward the first appeal for 297 days.  Because the first appeal was untimely the Applicant’s appeal rights lapsed.

Appeal Letter

Appeal Analysis

Background

On October 24, 2005, Hurricane Wilma impacted the state of Florida, causing damage to St. Thomas University (Applicant), an eligible private nonprofit.[1]  FEMA prepared Project Worksheet (PW) 8956 to address roof damage to four buildings, including Kennedy Hall.[2]

The PW, originally obligated in March 2007, described the extent of the damage to Kennedy Hall as an estimated 3,000 square feet of the east and west lower roof.[3]  Accordingly, it provided a scope of work (SOW) for Kennedy Hall that included removal and repair of the damaged roofing at an estimated cost of $36,000.00.[4]  During closeout in 2011, the Applicant submitted additional costs related to Kennedy Hall which included $631,226.82 for recoating all 19,296 square feet of the main roof.  FEMA determined that recoating the main roof was outside the PW’s approved SOW and, accordingly, disallowed those expenses.[5] 

First Appeal

In a letter dated November 14, 2011, the Applicant stated that it disagreed with FEMA’s disallowance of costs associated with recoating the Kennedy Hall main roof, which it asserted were a necessary part of “an approved roofing repair project.”[6]  In addition, the Applicant stated that it had incurred, but not yet submitted due to an oversight, expenses in the amount of $62,893.00.[7]  It indicated that these expenses were within the SOW and were eligible for reimbursement.[8]

The Florida Division of Emergency Management (Grantee) forwarded the Applicant’s first appeal in a letter dated September 6, 2012.[9]  It identified the amount in question as $640,531.00 and explained that the difference between this amount and the $631,226.82 FEMA disallowed was due to additional small discrepancies in administrative costs.[10] 

On April 13, 2015,[11] FEMA issued a Final Request for Information (RFI), soliciting documentation to substantiate eligibility of the Kennedy Hall main roof project, a copy of any submission to the Grantee requesting a change in the SOW or additional funding, an explanation for the additional $62,893.00 in expenses, and some additional insurance documentation.[12]  The Applicant responded to the RFI on May 22, 2015, explaining that the Kennedy Hall main roof needed repair due to replacement of its gutter system, a satellite dish and exhaust fans that were blown off during the Hurricane, and uplift testing performed to assess hurricane-related damage.  It added that the roof’s manufacturer advised that recoating was necessary for the roof to remain structurally sound and to keep the warranty intact.[13]  Regarding the additional $62,893.00, the Applicant stated that these costs included uplift and moisture roof testing, roofing consulting services, electrical work, kitchen ceiling repairs, and roof repairs.[14]  It stated that it previously submitted documentation of these costs, although it did not resubmit the associated invoices with the response to the RFI.[15]

On April 11, 2016, FEMA Region IV Regional Administrator (RA) issued the first appeal determination.[16]  The RA first concluded that the appeal was untimely because, although the Applicant submitted it to the Grantee on time, the Grantee did not submit it to FEMA until well beyond the 60-day deadline.[17]  Regarding the Kennedy Hall main roof, the RA noted that the work to recoat it was outside the approved SOW.[18]  With respect to the additional $62,893.00, the RA found that these expenses did not correspond to the SOW outlined in the PW, and that there was insufficient documentation to support reimbursement.[19]  Accordingly, the RA denied the first appeal.

Second Appeal

In its second appeal, dated June 28, 2016, the Applicant argues that recoating the Kennedy Hall main roof was within PW 8956’s SOW. [20]  With respect to the additional $62,893.00, it explains these expenses were for roof testing and consulting services, electrical work, and interior ceiling repairs, and argues that this was otherwise eligible work for which it neglected to submit invoices at closeout.[21]  The Applicant also asserts that it provided detailed invoices and explanations regarding these expenses in its original appeal, and it was unclear what additional documentation FEMA required.[22]  In its written submission, the Applicant does not challenge the RA’s determination that the first appeal was untimely.  The Grantee forwarded the Applicant’s second appeal on August 1, 2016.[23]

The Applicant also presented its second appeal orally in a meeting with FEMA on May 3, 2017.  In a supplementary submission, the Applicant provided the invoices associated with the $62,893.00, while maintaining that it previously submitted them.

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[24]  FEMA’s implementing regulations require that applicants file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed, at which point the grantee must forward the appeal, along with a written recommendation, to the RA within 60 days.[25]  Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the Applicant’s appeal rights lapse.[26]  Neither the Stafford Act, nor FEMA’s regulations, authorize FEMA to grant time extensions for filing appeals.[27]

Here, the Applicant submitted its first appeal to the Grantee on November 14, 2011.[28]  Federal regulations afforded the Grantee 60 days to forward the first appeal to FEMA for consideration.[29]  The Grantee, however, did not forward the appeal until September 6, 2012, which was 297 days later.[30]  Due to the first appeal being submitted by the Grantee after the expiration of the 60-day timeframe required by 44 C.F.R. § 206.206(c)(2), the RA correctly determined that the first appeal was untimely.[31]

Conclusion

Because the first appeal failed to comply with the requirements of 44 C.F.R. § 206.206(c), the Applicant’s first appeal was untimely and its appeal rights lapsed.  Therefore, this appeal is denied.