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Second Appeal Brief
PA ID# 025-70275-00; City of Sweetwater
PW ID# Multiple PWs; Appeal Timeliness, Support Documentation, 705(c)
Conclusion: The City of Sweetwater’s (Applicant) second appeal was untimely. Applicant’s first and second appeal both lacked documented justification as required by 44 C.F.R. § 206.206(a). FEMA’s Section 705(c) policy does not apply to this appeal because the Applicant’s second appeal rights lapsed and, even if it did, the Applicant has not demonstrated, due to inadequate documentation, that the costs were reasonable and the purpose of the grant was accomplished.
In October 1999, Hurricane Irene (DR-1306) swept over the City of Sweetwater, Florida, causing widespread flooding and damage. Afterwards, the Applicant initiated multiple repair projects and sought reimbursement from FEMA’s Public Assistance (PA) Program. One year later, the Applicant was impacted by heavy rains and flooding from another disaster (DR-1345) that adversely affected some of the ongoing repair work from the prior disaster. FEMA subsequently prepared over 30 Project Worksheets (PWs) to document debris removal, emergency protective measures and permanent work. In May 2010, at the final inspection prior to project closeout, FEMA discovered the Applicant was unable to provide complete documentation to substantiate the costs for each project. In May 2012, FEMA deobligated all funding from 29 PWs, 28 PWs related to DR-1345 and 1 PW related to DR-1306. In a letter dated April 24, 2014, the Applicant appealed FEMA’s deobligation of $2,018,593.29 in PA funding for the 29 PWs. While adjudicating the appeal, the Regional Administrator (RA) sent a Final Request for Information (RFI) to the Applicant. The Final RFI advised the Applicant that the Administrative Record did not validate reimbursement for incurred costs. The Final RFI made detailed requests for multiple, specific pieces of information. The Applicant responded by sending FEMA a USB flash drive containing over 12,000 separate files without a cover letter or any indication as to how the files related to the Applicant’s appeal. On January 13, 2016, the RA issued a decision denying the Applicant’s appeal. The RA determined that the Applicant did not adequately document costs incurred for the projects. The RA also determined there was a likely duplication of benefits for several projects that received Hazard Mitigation Grant Program funds. The RA upheld the deobligation of funds from all 29 appealed PWs. In a letter dated May 27, 2016, the Applicant filed a second appeal. The Applicant argues that the South Florida Water Management District court case and Section 705(c) of the Stafford Act both prohibit FEMA from deobligating PA funds for 10 PWs related to DR-1345. The Applicant now seeks $4,430,092.00 in deobligated PA funds.
Authorities and Second Appeals
- Stafford Act §§ 423(a), 705(c).
- 44 C.F.R. §§ 206.206(a), 206.206(c)(1).
- OMB Circular A-87, Attachment A.
- FP 205-081-2, at 4.
- City of Pensacola, FEMA-1551-DR-FL, at 5.
- Chevra Hatzalah, FEMA-4085-DR-NY, at 4, 5.
- Port of Galveston, FEMA-1791-DR-TX, at 5, 7.
- Broward Cty. Sch. Bd., FEMA-1609-DR-FL, at 3.
- City of Vero Beach, FEMA-1545/1561-DR-FL, at 6.
- Pursuant to Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1), appeals must be filed within 60 days after receipt of a notice of the action that is being appealed
- Applicant received FEMA’s first appeal decision on March 1, 2016. Applicant filed its second appeal on May 27, 2016.
- Pursuant to 44 C.F.R. § 206.206(a), appeal shall contain documented justification supporting the appellant’s position.
- Applicant’s submission of over 12,000 documents with no explanation as to how those documents support its appeal fails to meet the requirements of submitting documented justification.
- FP 205-081-2 applies if appeal rights are available all three statutory criteria of Section 705(c) are satisfied.
- Applicant’s second appeal is untimely. As a result, its appeal rights have lapsed and FP 205-081-2 does not apply.
- The Applicant also has not demonstrated that the costs were reasonable and the purpose of the grant was accomplished. Therefore, FP 205-081-2 does not apply.