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Second Appeal Brief
PA ID# 025-70275-00; LSU Health Care Services Division Medical Center of Louisiana at New Orleans
PW ID# RPA; Appeal Timeliness
Conclusion: The LSU Health Care Services Division Medical Center of Louisiana at New Orleans’ (Applicant) second appeal was untimely. The Arbitration Agreement in United States Civilian Board of Contract Appeals case CBCA 2874-FEMA contains language that specifically bars any appeals related to Charity Hospital.
Hurricanes Katrina and Rita struck the Gulf Coast in August and September 2005, severely damaging Charity Hospital (Hospital) in New Orleans, Louisiana. Afterwards, the state vacated and closed the Hospital. FEMA prepared Project Worksheet (PW) 2175 to document the costs of permanent repairs to the Hospital. The Grantee disagreed, believing the Hospital needed replacement instead of repair. Arbitration occurred before the United States Civilian Board of Contract Appeals (CBCA) in cases CBCA 1741-FEMA and CBCA 2874-FEMA. The dispute was resolved with an Arbitration Agreement (Agreement), signed by the State of Louisiana, Facility Planning and Control, the Governor’s Office of Homeland Security and Emergency Preparedness, and FEMA in January and February of 2013. Per the Agreement, FEMA obligated $61,286,054.62 for the replacement of fixed equipment items damaged by the disasters and located in the Hospital. In September 2013, the Applicant submitted a PW request for $232,000.00 to remove a multi-place hyperbaric chamber (HB chamber) from the Hospital and relocate it. In May 2014, the Applicant requested an amendment to their earlier PW request to include $17,731,136.00 for the construction of an entirely new facility to house the HB chamber. In a letter dated October 31, 2014, FEMA denied the Applicant’s request concluding the Applicant lacked the legal responsibility for the items of work requested. FEMA also determined that funding the request was a prohibited duplication of benefits as the Applicant already received assistance under the terms of the arbitration decision in case CBCA FEMA-1741. The Applicant appealed, and conceded that it did not own and was not legally responsible for the HB chamber prior to or during Hurricane Katrina. However, the Applicant disputed FEMA’s determination that funding the PW request would result in a duplication of benefits. The Applicant also asserted that the arbitration decision in CBCA FEMA-1741 did not contemplate the HB chamber and that FEMA had the discretion to fund the PW request. FEMA sent a Final Request for Information (Final RFI) giving the Applicant a final opportunity to submit additional information in support of its appeal. The Applicant did not respond. On September 8, 2015, the FEMA Region VI Regional Administrator (RA) denied the appeal finding the Applicant was not legally responsible for the work. The RA also determined FEMA’s prior subaward to replace the Hospital and its fixed equipment precluded any additional assistance, and that the CBCA FEMA-1741 arbitration decision and CBCA FEMA-2874 Agreement preempted any further claims for assistance. The RA’s decision informed the Applicant of the timeframe to submit a second appeal. The Grantee transmitted the decision to the Applicant in a letter dated September 15, 2015. In a December 14, 2016 letter, the Applicant provided supplemental information related to its appeal. FEMA responded, declining consideration of the Applicant’s supplemental information since FEMA already rendered an appeal decision and closed the Administrative Record. FEMA reminded the Applicant of the second appeal submission requirements as listed in the first appeal decision. By letter dated May 10, 2017, the Applicant sent FEMA information, “in support of a second appeal.” The Applicant’s letter contained the same attachments and made the same arguments as its December 14, 2016 letter. The Applicant’s letter also urges FEMA to re-open the Administrative Record and consider the information provided.
Authorities and Second Appeals
- Stafford Act § 423(a).
- American Recovery and Reinvestment Act of 2009, § 601.
- 44 C.F.R. §§ 206.206(a), 206.206(c)(1), 206.209(k)(3).
- Chevra Hatzalah, FEMA-4085-DR-NY, at 4.
- Broward Cty Sch. Bd., FEMA-1609-DR-FL, at 3.
- 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
- FEMA issued a first appeal decision on September 8, 2015. The Grantee transmitted it to the Applicant in a letter dated September 15, 2015. The Applicant filed its second appeal on May 10, 2017, making the second appeal untimely.
- Per 44 C.F.R. § 206.209(k)(3), a decision of the majority of the arbitration panel shall constitute a final decision, binding on all the parties. Final decisions are not subject to further administrative review.
FEMA and the Applicant entered into an Arbitration Agreement, which was approved by the CBCA. The Agreement preempts any other claims related to Charity Hospital, including that raised in this appeal.