Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4085
ApplicantTown of Southampton
Appeal TypeSecond
PA ID#103-68473-00
PW ID#PW 4197
Date Signed2017-11-22T00:00:00
Conclusion: The Town of Southampton (Applicant) has not demonstrated its July 28, 2016 letter satisfies the appeal content requirements of 44 C.F.R. § 206.206(a) and the Applicant’s appeal dated December 21, 2016, was untimely under 44 C.F.R. § 206.206(c)(1).  Accordingly, the appeal is denied.
 
Summary Paragraph
From October 27 through November 9, 2012, Hurricane Sandy caused extensive damage throughout the State of New York.  The Applicant requested Public Assistance (PA) for sand/snow fencing replacement at three beaches, which are located within a Coastal Barrier Resources System.  In a Determination Memo dated June 1, 2016, FEMA denied the Applicant’s request for PA funding.  In consultation with  the U.S. Fish and Wildlife Service, FEMA determined that sand/snow fencing replacement was not permissible under the Coastal Barrier Resources Act.  On June 16, 2016 the New York State Division of Homeland Security and Emergency Services (Grantee) informed the Applicant of FEMA’s determination and also that it had 60 days from receipt to appeal FEMA’s decision.  The Applicant received the notification and determination on July 14, 2016.  The Applicant sent the Grantee a letter notifying it of its intent to appeal on July 28, 2016, which the Grantee received in October 2016.  The Applicant then appealed on December 21, 2016 and the appeal was forwarded to FEMA along with the Grantee’s concurrence on February 15, 2017.  The FEMA Region II Regional Administrator (RA) denied the first appeal as untimely.  The RA also noted that the the Applicant’s July 2016 letter, which FEMA did not receive until May 2017 in response to FEMA’s Final Request for Information, did not constitute an appeal under FEMA regulations.  On second appeal, the Applicant claims its July 2016 letter constitutes an appeal and it then supplemented this appeal with its December 2016 letter.  The Grantee also cites to two U.S. Supreme Court cases in support of its argument that FEMA’s filing deadlines are not jurisdictional, but are merely claim processing rules. 
 
Authorities and Second Appeals
  • Stafford Act § 423(a).
  • 44 C.F.R. § 206.206(a) and (c).
  • City of Greenville, FEMA-1808-DR-KY, at 2.
  • Dept. of Transp., FEMA-4068-DR-FL, at 3.
  • Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).
  • Henderson v. Shinseki, 562 U.S. 428, 435 (2011)
 
Headnotes
  • Under 44 C.F.R. § 206.206(a), an appeal must specify the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.
    • The Applicant’s July 28, 2016 letter did not include a specific monetary amount in dispute and did not reference legal provisions with which FEMA’s determination was inconsistent.  Moreover, the plain language in the letter demonstrates it was not an appeal, but rather a notification of the Applicant’s intent to appeal.  As such, it does not satisfy the appeal content requirements of 44 C.F.R. § 206.206(a).
  • Stafford Act § 423(a), implemented by 44 C.F.R. § 206.206(c)(1), allows an applicant to appeal any PA determination within 60 days of receiving notice of the appealable action.
    • The Applicant submitted its appeal of PW 1354 more than 60 days after receipt of the Grantee’s notification. 
 

Appeal Letter

Barbara Lee Steigerwald
Deputy Commissioner, Alternate Governor’s Authorized Representative
New York State Division of Homeland Security and Emergency Services
1220 Washington Avenue
Building 7A, 4th Floor
Albany, NY 12242
 
Re:  Second Appeal – Town of Southampton, PA ID: 103-68473-00, FEMA-4085-DR-NY Project Worksheet (PW) 4197 – Appeal Timeliness
 
Dear Deputy Commissioner Steigerwald:
 
This is in response your letter dated September 4, 2017, which transmitted the referenced second appeal on behalf of the Town of Southampton (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding pertaining to sand/snow fencing replacement.
 
As explained in the enclosed analysis, I have determined that the Applicant’s June 28, 2016 letter does not satisfy the appeal content requirements of 44 C.F.R. § 206.206(a), and the Applicant’s appeal dated December 21, 2016, was untimely under 44 C.F.R. § 206.206(c)(1).  Accordingly, I am denying this appeal.       
 
Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
 
                                                               /s/
                                                                        Alex Amparo
                                                                        Assistant Administrator
                                                                        Recovery Directorate             
 
Enclosure
cc: Thomas Von Essen
      Regional Administrator
      FEMA Region II

 

Appeal Analysis

Background
During an incident period from October 27 through November 9, 2012, Hurricane Sandy caused extensive damage throughout the State of New York.  The Town of Southampton (Applicant) requested Public Assistance (PA) for sand/snow fencing replacement at nine sites, including Sagg Main Beach, West Scott Cameron Beach, and Flying Beach (Beaches), which are located within Coastal Barrier Resources System (CBRS) Unit-59.  FEMA issued a Determination Memorandum on June 1, 2016, which stated that the sand/snow fencing replacement was not eligible for PA because the Beaches were not in existence prior to enactment of the Coastal Barrier Resources Act of 1982 (CBRA) and the U.S. Fish and Wildlife Service (FWS) informed FEMA that such work did not meet any of the CBRA criteria or exceptions that would allow funding.  Accordingly, on June 16, 2016, FEMA obligated funding for Project Worksheet (PW) 4197 but excluded costs for the sand/snow fencing at the Beaches in the amount of $17,510.19.  On June 16, 2016, the New York State Division of Homeland Security and Emergency Services (Grantee) sent the Applicant PW 4197, along with a letter informing the Applicant that it had 60 days from receipt of the PW to appeal FEMA’s decision.  The Applicant received FEMA’s determination and the Grantee’s letter on July 14, 2016.
 
First Appeal
 
The Applicant appealed FEMA’s determination in a letter dated December 21, 2016.  The Applicant stated that FEMA has reimbursed sand/snow fencing replacement at the Beaches in the past.  The Applicant disputed the determination that the Beaches were not constructed until after 1982, when the CBRA was enacted.  Rather, the Applicant contended the Beaches were established prior to 1982, as evidenced by aerial photographs from 1976 submitted with the appeal.  The Grantee concurred in a February 15, 2017 letter and accompanying memorandum.  The Grantee argued FEMA previously reimbursed the Applicant for work at the Beaches for snow fences.  The Grantee included a letter from FWS, for a prior disaster, permitting the replacement of snow fencing at another beach similar to the Beaches subject to the appeal.  The Grantee pointed out that FWS allowed for funding for Hurricane Irene, but not for Sandy, and offered no explanation.  Further, the Grantee disputed information in FEMA’s Emergency Management Mission Integrated Environment (the Agency’s grant database) indicating that the beach/park were established in 1990, countering that the aerial pictures documented that the Beaches were in existence in 1976.  Thus, the Beaches were constructed prior to 1982 and were eligible for PA funding. 
 
FEMA sent the Applicant a Final Request for Information (Final RFI) on April 26, 2017.  FEMA informed the Applicant that if it based its decision on the information and documentation currently in the Administrative Record, it would deny the appeal.  Therefore, FEMA was providing the Grantee and Applicant a final opportunity to provide additional information.  FEMA noted that the Applicant had 60 days to appeal FEMA’s initial determination and the Applicant submitted its first appeal on December 21, 2016, approximately six months after receiving notice. 
 
The Grantee responded to the RFI on May 1, 2017, contending that the Applicant notified the Grantee on July 28, 2016 that it received FEMA’s determination on July 14, 2016 and it intended to appeal.  In support thereof, the Grantee provided a copy of the July 28, 2016 letter.[1]  However, the Grantee explained that its staff did not follow procedure.  Instead, the Applicant submitted the appeal without assistance of the Grantee and sent it to the Grantee (who received it in October 2016), who in turn forwarded it to FEMA.  The Grantee maintained the staff member responsible for the delay had since left their employment and that the delay should not negatively impact the appeal.  Finally, the Grantee stated that the Applicant did not have additional information to submit regarding the CBRA issue.
 
The FEMA Region II Regional Administrator (RA) denied the appeal on July 6, 2017.  The RA determined that pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c), the Applicant’s appeal was untimely.  The RA explained that FEMA notified the Grantee of its determination on June 1, 2016 and the Applicant received notification from the Grantee on July 14, 2016.  While the Applicant submitted a notice of intent to appeal to the Grantee on July 28, 2016, FEMA never received such letter until the Grantee responded to its RFI and, additionally, the July 28, 2016 letter did not contain documented justification as required by FEMA regulations.  The appeal containing documented justification (such as support for the Applicant’s position, specifying the monetary figure in dispute, and the provisions in federal law regulation, or policy) was not submitted until December 21, 2016, over 90 days past the deadline to submit the appeal.  The RA also determined that the Grantee did not submit the appeal to FEMA until February 15, 2017, more than 120 days past the Grantee’s regulatory submission deadline and so either the Applicant’s December 2016 letter or the Grantee’s forwarding letter was untimely.  The RA concluded that FEMA lacked the statutory and regulatory authority to grant a time extension. 
 
Second Appeal
 
In its second appeal dated August 31, 2017, the Applicant requests $17,510.19 in funding previously denied for snow/sand fencing.  The Applicant notes it was notified on July 14, 2016 of FEMA’s determination and appealed on July 28, 2016, well within the 60-day deadline.  The Applicant claims it was never contacted by FEMA that its July 2016 letter was insufficient and no RFI was issued by FEMA.  The Applicant then responds to the issues detailed in FEMA’s Determination Memorandum.  In short, the Applicant argues that the Grantee timely received the Applicant’s letter and transmitted it to FEMA.  The Applicant contends that it acted responsibly and in good faith by submitting the July 2016 letter showing its disagreement with the denial and notifying the Grantee and FEMA that it intended to appeal.  The Applicant thus requests the July 28, 2016 letter be included in the Administrative Record Index and its claim for reimbursement for the sand/snow fence be approved.[2]
 
The Grantee concurs in a September 4, 2017 letter and accompanying memorandum.  The Grantee acknowledges that a delay from its office resulted in the appeal (July 2016 letter) being filed seven months after it was received.  The Grantee points to two United States Supreme Court cases that it believes repeatedly caution against conflating filing deadlines with jurisdictional authority, as filing deadlines are generally not jurisdictional and are quintessentially claim-processing rules.[3]  It also states there is no indication in the Stafford Act or any intent by Congress to unnecessarily restrict FEMA’s ability to provide due process in considering appeals, as exemplified by FEMA’s ability to send RFIs to extend the statutory deadline for rendering appeal decisions.  Accordingly, the Grantee concludes there is no statutory bar to FEMA’s exercise of discretion in considering appeals to effectuate the purpose of the Stafford Act. 
 
Discussion
 
Sufficiency of Appeal
 
Pursuant to 44 C.F.R. § 206.206(a), an appeal must specify the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the applicant believes the initial action was inconsistent.[4]  The Applicant asserts its July 28, 2016 letter was a timely first appeal.  Timely filing, however, is only one requirement of an appeal.  FEMA must first examine whether the letter satisfies the content requirements of 44 C.F.R. § 206.206(a).[5]  First, FEMA notes the Applicant’s July 28, 2016 letter did not include a specific monetary amount in dispute, and did not reference legal provisions with which FEMA’s determination was inconsistent.  Second, the plain language in the letter demonstrates it was not an appeal; specifically, the Applicant only stated it wanted to inform the Grantee of its intent to appeal.  Moreover, the letter was never forwarded to FEMA.  Consequently, the Applicant’s letter dated July 28, 2016, fails to satisfy the content requirements of 44 C.F.R. § 206.206(a).
 
Appeal Timeliness
 
The Stafford Act § 423(a) 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.”[6]  44 C.F.R. § 206.206(c)(1) implements this section and states that applicants must submit appeals within 60 days of receipt of the notice of the action that is being appealed.  Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.[7] 
 
The Applicant received notice of FEMA’s determination on July 14, 2016, and was explicitly advised it had 60 days from receipt to request an appeal.  Though the Applicant submitted its July 28, 2016 letter before the appeal deadline expired, it does not satisfy the requirements of 44 C.F.R. § 206.206(a) and consequently is not viewed as an appeal for purposes of assessing timely submission.  Ultimately, the Applicant did not file a document that met substantive requirements of an appeal until December 21, 2016, almost 90 days after the deadline to file expired.  The Grantee argues FEMA’s statutory and regulatory timeframes for filing appeals are not compulsory and contends they are nonjurisdictional (i.e. claim-processing rules).  The Grantee points to two U.S. Supreme Court cases in support of its argument.  However, the Grantee’s reliance on these cases is misplaced.  First, one of the cases is factually disparate from the Applicant’s circumstances.[8]  The other U.S. Supreme Court case is unpersuasive and inapplicable because it pertains to an appeal system that is statutorily dissimilar.[9]  Here, as noted previously, 44 C.F.R. § 206.206(c) states, “Appellants must file appeals within 60 days after receipt…”[10]  As such, FEMA regulations required the Applicant appeal within 60 days and its first appeal was untimely.  There is no statute nor regulation authorizing FEMA to extend the time for filing PA appeals.
 
Conclusion
 
The Applicant’s letter dated July 28, 2016 does not satisfy the content requirements of 44 C.F.R. § 206.206(a) and the Applicant’s appeal dated December 21, 2016, was untimely under 44 C.F.R. § 206.206(c)(1).  Consequently, the appeal is denied.
 
[1] Letter from Comptroller, Town of Southampton, to Disaster Asstistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (July 28, 2016) (stating the Applicant received the Determination Memorandum and the letter served “to notify the [Grantee] that the [Applicant] intends to appeal the determination”.).
[2] After receiving the July 28, 2016 letter in response to its Final RFI, FEMA included the letter as part of the Administrative Record.
[3] Letter from Dep. Comm. for Disaster Recovery Programs, N.Y. State Div. of Homeland Sec. and Emergency Servs., to Acting Reg’l Adm’r., FEMA, at 2 (Sep. 4, 2017) (the Grantee points to Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) and Henderson v. Shinseki, 562 U.S. 428, 435 (2011), in support of its assertion that FEMA’s 60-day deadline was merely a claim processing rule.).
[4] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(a) (2011).
[5] FEMA Second Appeal Analysis, City of Greenville, FEMA-1818-DR-KY, at 2 (June 22, 2017).
[6] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423(a), 42 U.S.C. § 5189a(a) (2007).
[7] FEMA Second Appeal Analysis, Dept. of Transp., FEMA-4068-DR-FL, at 3 (Aug. 5, 2016).
[8] Sebelius v. Auburn Reg’l Med. Ctr. involved a hospital seeking review of 10-year old Medicare reimbursement payments.  By statute, the hospital had 180 days after receipt of notice to file an administrative appeal.  A Department of Health and Human Services (HHS) regulation allows for a 3-year extension of this deadline, for good cause shown.  The hospital sought to appeal their Medicare reimbursement payments even though they were more than 3 years past the extended filing deadline.  The hospital urged HHS to apply equitable tolling to its administrative appeal.  The Supreme Court ruled the 180-day time limit was nonjurisdictional and thus the HHS regulation allowing for a 3-year extension was reasonable.  However, the Supreme Court also held that equitable tolling does not apply to administrative appeals, therefore the hospital was unsuccessful in having its 10-year old appeal reviewed.  Unlike HHS, FEMA has no regulation allowing for the extension of the PA appeals filing deadline  and equitable tolling does not apply to administrative appeals.  Sebelius is therefore unpersuasive and in fact, militates against the Grantee’s argument.             
[9] Henderson v. Shinseki occurred within the confines of the Department of Veterans Affairs (VA) process for adjudicating veterans’ benefits claims for service-connected disabilities.  The U.S. Supreme Court in Henderson recognized, “[t]he solicitude of Congress for veterans is long standing.”  Henderson, at 440.  “[T]hat solicitude is plainly reflected in . . . subsequent laws that ‘place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.’ ”  Henderson, at 440.  For example, “the VA has a statutory duty to assist veterans in developing the evidence necessary to substantiate their claims.”  Henderson, at 431.  In contrast, FEMA is under no such duty to assist applicants for federal disaster assistance programs.  Henderson is inapplicable and unpersuasive because of the unique nature of VA disability appeals and Congress’ determination that the system should tilt in favor of the veteran. 
[10] 44 C.F.R. § 206.206(c).
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