Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 025-99025-00; Miami-Dade County
PW ID# 3343; Support Documentation
From October 3 through 11, 2000, heavy rains impacted the state of Florida, including Miami-Dade County (Applicant). Multiple project worksheets (PWs) were written to address damage, including several for Category D, water control facilities. In 2009, nearly six years after these Category D projects were closed out, FEMA prepared PW 3343 to address overruns in project management, engineering, and design costs which the Applicant asserted were eligible for Public Assistance (PA) funding, but had not been reimbursed previously. The total of these costs was $399,386.43. In September 2014, FEMA determined that the additional costs were ineligible for funding because the record did not justify the cost overruns or delay in seeking reimbursement.
The Applicant appealed FEMA’s denial in January 2015, arguing that the cost overruns were eligible for PA funding. The Applicant inquired with the Florida Division of Emergency Management (Grantee) as to the status of the appeal in emails dated March 5, 2015, May 24, 2016, June 1, 2016, and December 19, 2016. On December 22, 2016, FEMA Region IV issued a final Request for Information (RFI) for documentation to support the cost overruns and delay in seeking reimbursement. The final RFI, however, was emailed to the Grantee, and not to the Applicant. On January 11, 2017, the Grantee contacted FEMA requesting the status of the first appeal. FEMA responded the same day, advising the Grantee that an RFI had been sent and attaching a copy of the RFI and the December 22 email. There is no indication in the record that the Grantee ever forwarded the RFI to the Applicant because, on June 6, 2017, the Applicant again contacted the Grantee requesting an update on the status of the first appeal and stating that it had not heard from FEMA or the Grantee regarding the first appeal. The Grantee replied, explaining that the appeal was under consideration by FEMA, but neglecting to mention the RFI.
The Region IV Regional Administrator issued the first appeal determination on June 28, 2017. She denied the first appeal because the administrative record did not contain sufficient documentation to justify the cost overruns or the delay in seeking reimbursement. The first appeal decision specifically mentioned the Applicant’s failure to respond to the RFI.
The Applicant filed its second appeal in a letter dated August 18, 2017. It summarized its substantive arguments, and argued that it never received the final RFI, so it never had the opportunity to provide documentation that would have supported its first appeal. In forwarding the second appeal, the Grantee acknowledges that it has no record of sending the RFI to the Applicant. Following the submission of the second appeal, the Grantee inquired with FEMA as to whether the RFI had been sent to the Applicant, as stated in the first appeal decision. FEMA acknowledged in an email dated August 23, 2017, that it had not and that the statement within the first appeal decision was incorrect.
When a Regional Administrator (RA) is considering denying a first appeal in whole or in part, the RA must issue to the applicant a final RFI, explaining the basis for the likely denial and requesting that the applicant provide additional information that could support its appeal. The Applicant must also be advised that, after the RA issues the first appeal decision, the administrative record will close and FEMA will not consider new documentation submitted for the first time on second appeal.
Here, FEMA is convinced that, despite the fact that Region IV sent the RFI to the Grantee twice, the Applicant never received it. As FEMA has already acknowledged, the RFI was not sent directly to the Applicant. The Applicant diligently inquired about the status of the appeal, but was not informed about the RFI. Moreover, the first appeal decision relied, at least in part, on the lack of documentation in the administrative record, making the RFI particularly important in this case.
In light of the foregoing, this appeal is remanded to Region IV to rescind the first appeal determination so that a new RFI can be issued and the Applicant can submit documentation. After this, a new first appeal decision must be issued taking the Applicant’s documentation into consideration, at which point the administrative record will close. In remanding this appeal, FEMA expresses no opinion on the substantive merits of the Applicant’s arguments.
 Because this second appeal deals exclusively with a procedural issue, this analysis will not discuss the underlying substantive issue.
 The first appeal decision noted an extensive delay in the Applicant receiving notification of FEMA’s decision, but found that the Applicant’s first appeal was timely.
 These emails were provided with the second appeal, which means that Region IV did not have the benefit of seeing them prior to issuing its decision. As will be discussed later in this analysis, FEMA typically will not consider new information on second appeal. Here, however, these emails relate directly to the closing of the administrative record. Accordingly, as will be discussed later, FEMA will consider them to the extent they are relevant to this purely procedural issue.
 According to the email, a hard copy of the RFI was also to be sent to the Applicant, but review of the record does support a conclusion that such delivery occurred.
 Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 3, at 14 (Apr. 7, 2014).