Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4086-
ApplicantSea Isle City,
Appeal TypeSecond
PA ID#PA ID 009-66390-00
PW ID#1859 & 3419
Date Signed2017-12-01T00:00:00
Conclusion:  FEMA’s prior eligibility determinations omitted mention of the Applicant’s appeal rights and procedural requirements to submit an appeal.  As such, there is no basis to uphold the first appeal decision, as doing so would enforce requirements the Applicant did not receive adequate notice of.
 
Summary Paragraph
From October 26 to November 8, 2012, Hurricane Sandy caused flood damage to the Sea Isle City’s (Applicant) City Hall and Public Safety Building.  To document repair and restoration costs, FEMA prepared Project Worksheet (PW) 1859 for the City Hall, obligating $22,410.67, and PW 3419 for the Public Safety Building, obligating $51,637.08.  On April 1, 2015, the Applicant, through a single submission to the New Jersey Office of Emergency Management (Grantee), requested the PWs be combined into one improved project.  Additionally, the Applicant argued FEMA had substantially underestimated repair and restoration costs for both buildings and requested changes to both PWs’ approved scopes of work and cost estimates.  On June 10, 2015, the Grantee transmitted the Applicant’s requests to FEMA, sending a separate transmission for each PW, and noting the estimated costs to restore the City Hall and Public Safety Building as $1,811,730.00 and $764,530.00 respectively.  FEMA denied the Applicant’s requests on July 9, 2015.  Through a series of e-mail correspondences, the Applicant and Grantee discussed holding an oral meeting with FEMA to reconsider the denials.  FEMA subsequently held the oral meeting, but reaffirmed the denial through a November 20, 2015 determination, which the Applicant received on December 7, 2015.  On February 3, 2016, through two electronic submissions to the Grantee (one for each PW), the Applicant requested to appeal, and indicated its support documentation would follow.  The Applicant later submitted a March 1, 2016 appeal letter, which the Grantee transmitted to FEMA through separate May 26, 2016 first appeal packages for each PW.  The Region II Regional Administrator denied the appeals solely on timeliness, determining: (1) the March 1, 2016 appeal letter was untimely because it was filed 85 days after the Applicant received notice on December 7, 2015, and (2) the Grantee failed to transmit the appeal within 60 days of March 1, 2016.  The Applicant filed a single second appeal for both PWs, arguing its February 3, 2016 submissions were timely first appeals. 
 
Authorities and Second Appeals
  • Stafford Act § 423.
  • 44 C.F.R. § 206.206 (a), (c).
  • Public Assistance Program Appeal Procedures, at 11.
 
Headnotes
  • The Appeals Manual requires that when FEMA issues an eligibility determination it provide an applicant notice of its appeal rights and the format, content, and procedural requirements outlined in 44 C.F.R. § 206.206, which includes a 60 day time limit.
    • When FEMA issued eligibility determinations on both July 9, 2015 and November 20, 2015, it failed to apprise the Applicant of its appeal rights.  As such, the Applicant did not receive adequate notice of the format, content, and procedural requirements outlined in 44 C.F.R. § 206.206.

Appeal Letter

Jeffrey Mottley
Assistant Deputy State Director
New Jersey Office of Emergency Management
P.O. Box 7086
West Trenton, NJ 08628-0068
 
Re:  Second Appeal – Sea Isle City, PA ID 009-66390-00,
FEMA-4086-DR-NJ, Project Worksheets 1859 & 3419 – Appeal Timeliness
 
Dear Mr. Mottley:
 
This is in response to a letter from your office dated February 24, 2017, which transmitted the referenced second appeal on behalf of Sea Isle City (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $2,576,260.00.
 
FEMA’s prior eligibility determinations omitted mention of the Applicant’s appeal rights and the procedural requirements to submit an appeal.  As such, the Applicant did not receive adequate notice, which is required by the Recovery Directorate Manual, Public Assistance Program Appeal Procedures.  Accordingly, the second appeal is granted, and the RA is instructed to address the first appeal on its substantive merits.
 
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/
Christopher Logan
Director
Public Assistance Division
 
Enclosure
 
cc:  John Rabin  
Acting Regional Administrator
FEMA Region II

 

Appeal Analysis

Background
From October 26 to November 8, 2012, Hurricane Sandy caused flood damage to the City Hall and Public Safety Building located in Sea Isle City, New Jersey (Applicant).  To document costs for repair and restoration, FEMA prepared Project Worksheet (PW) 1859, obligating $22,410.67 for the City Hall, and PW 3419, obligating $51,637.08 for the Public Safety Building.[1]
 
On April 1, 2015, the Applicant, through a single submission to the New Jersey Office of Emergency Management (Grantee), requested the PWs be combined into one improved project.[2]  Additionally, the Applicant argued FEMA had substantially underestimated repair and restoration costs for both buildings and requested changes to both PWs’ approved scopes of work and cost estimates.[3]  The Grantee transmitted the request to FEMA on June 10, 2015, sending separate submissions for each PW.[4]  The Grantee reiterated the Applicant’s arguments and noted estimated costs to restore the City Hall and Public Safety Building as $764,530.00 and $1,811,730.00 respectively.  
 
FEMA denied the requests, through two separate letters, on July 9, 2015.[5]  In accompanying memoranda, FEMA outlined its findings: (1) the Applicant’s April 1, 2015 submission was untimely because it was forwarded over two years after the Applicant signed and acknowledged the PWs; (2) costs for code-driven upgrades were not eligible as they did not apply to the repair work; and (3) the Applicant began the improved project before requesting approval from FEMA.[6]
 
Through a series of e-mail correspondences, the Applicant and Grantee discussed holding an oral meeting with FEMA to reconsider the denials.[7]  FEMA subsequently held the oral meeting, but reaffirmed the denials through a November 20, 2015 determination,[8] which it transmitted to the Grantee[9] and the Applicant later received on December 7, 2015.[10]   
 
First Appeal
 
On February 3, 2016, the Applicant made two separate electronic submissions, one for each PW, through New Jersey Emergency Management Grants (NJEM Grants)—the Grantee’s online grants management program.[11]  The Applicant informed the Grantee it was requesting to appeal determinations it received on December 7, 2015.[12]  However, the Applicant noted that it intended to submit support documentation in the days to follow.[13]  The Applicant later submitted a March 1, 2016 appeal letter,[14] which the Grantee transmitted to FEMA through separate May 26, 2016 first appeal packages for each PW.[15]  
 
FEMA Region II sent a Final Request for Information (Final RFI) to request documentation establishing the Applicant filed a timely appeal.[16]  The Final RFI specifically noted that 44 C.F.R. § 206.206(c) requires an appeal to be filed within 60 days of notice but the Applicant had filed its appeal eight months after FEMA’s July 9, 2015 determination.[17]  In response, the Applicant acknowledged receipt of the July 9, 2015 denials but asserted it did not receive notice until December 7, 2015, when it learned FEMA had denied the reconsideration.[18]  As such, the Applicant contended its February 3, 2016 submissions were timely sent within 60 days of receiving notice.[19]
 
On November 2, 2016, the RA denied the first appeals through a single decision.  The RA found the Applicant’s March 1, 2016 appeal untimely because it was filed 85 days after the Applicant received notice on December 7, 2015.[20]  Additionally, the RA determined the Grantee failed to timely transmit the appeals, as the transmittals were sent to FEMA on May 26, 2016, approximately 26 days after the 60 day timeframe.  The RA did not address the substantive merits of the appeals.[21]
 
Subsequently, the Applicant requested the RA reconsider the first appeal decision and again argued it did not receive notice of FEMA’s reconsideration denial until December 7, 2015, and thus its February 3, 2016 submissions met the 60 day appeal timeframe.[22]  The Applicant attached an e-mail from the Grantee, wherein the Grantee states the first appeals were filed through the February 3, 2016 submissions.[23]  On January 4, 2017, FEMA responded to the Applicant’s reconsideration request by outlining the Applicant’s second appeal rights.[24]
 
Second Appeal
 
On January 5, 2017, the Applicant made a single electronic submission through NJEM Grants, noting its desire to submit a second appeal and attaching its request for reconsideration of the first appeal and its response to the Final RFI.[25]
 
On February 24, 2017, the Grantee transmitted the Applicant’s second appeal to FEMA, and in support argues the Applicant received notice of FEMA’s determinations on December 7, 2015 and filed timely first appeals through the February 3, 2016 submissions.[26]  Additionally, the Grantee argues FEMA misinterpreted the March 1, 2016 letter as an appeal, asserting the Applicant sent it in response to the Grantee’s request for additional information.[27]  
 
Discussion
 
Pursuant to Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423(a), an applicant may appeal any decision regarding eligibility for, from, or amount of Public Assistance 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.[28]  Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206 implements that provision and establishes additional format, content and timeframe requirements for appeals.[29] 
 
The Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual), requires that upon issuance of a formal eligibility determination, FEMA must provide applicants notice of their appeal rights, and in doing so, use specific language referencing the format, content, and timeframe requirements outlined in 44 C.F.R. § 206.206.  This language includes an instruction that “[i]f the applicant elects to appeal, the first appeal must: (1) contain documented justification supporting the appeal position; (2) specify the monetary figure in dispute; and (3) cite the provisions in federal law or policy with which the applicant, subgrantee, or grantee believes the determination was inconsistent.”[30]  The Appeals Manual further specifies the inclusion of language outlining the routing of the appeal to the appropriate FEMA regional administrator through the grantee within 60 days of receiving the eligibility determination.[31] 
 
FEMA issued eligibility determinations through its initial July 9, 2015 denial letters and also its November 20, 2015 determination.  The Appeals Manual required FEMA to include language in those correspondence notifying the Applicant of its appeal rights and appeal procedural requirements.  However, both correspondence omitted this information.[32]  As such, the Applicant was not adequately informed that it needed to file an appeal within 60 days of receipt of notice, or that an appeal must include documented justification.  Consequently, numerous procedural defects ensued, including but not limited to: (1) the Applicant filing its February 3, 2016 submissions without support documentation;[33] (2) the Applicant submitting its first appeal support documentation outside the 60-day timeframe;[34] and (3) the Grantee failing to timely transmit the first appeal.  To uphold denial of the Applicant’s appeal based on one of these defects would be inappropriate because the Applicant did not receive adequate notice.     
 
Conclusion
 
By omitting mention of the Applicant’s appeal right and procedural requirements to submit an appeal from its prior determinations, FEMA did not provide the Applicant with adequate notice.  As such, there is no basis to affirm the first appeal, as doing so would have the effect of enforcing requirements the Applicant was not apprised of.  Accordingly, the second appeal is granted, and the RA is instructed to address the first appeal on its substantive merits.

[1] Project Worksheet 1859, Sea Isle City, Version 0 (Sept. 26, 2013); Project Worksheet 3419, Sea Isle City, Version 0 (July 26, 2013).
[2] Letter from Chief of Police, Sea Isle City Police Dep’t, at 1 (Apr. 1, 2015).
[3] Id.
[4] Letters from Lieutenant Pub. Assistance, Unit Head, State of N.J., Off. of the Att’y Gen. Dep’t of Law and Pub. Safety, Div. of State Police, to Sandy Recovery Officer, FEMA (June 10, 2015).
[5] Letters from Designated Official for N.J. Sandy Recovery Off., Pub. Assistance Conflict Matters, FEMA, to Pub. Assistance Unit Head, State of N.J., at 1 (July 9, 2015).
[6] Pub. Assistance Determination Memoranda, PW 1859 & 3419 (June 23, 2015) [hereinafter PW 1859 Determination Memo] and [hereinafter PW 3419 Determination Memo].
[7] Email from South Area Supervisor, Off. of Emergency Mgmt., N.J. State Police Public Assistance Unit, to Chief of Police, Sea Isle City Police Dep’t (Sept. 25, 2015, 1014 EST) (noting an oral meeting with FEMA was scheduled for October 1, 2015).
[8] Reconsideration Determination, PWs 1859 and 3419 (Nov. 20, 2015).
[9] Email from CCPRS, DR-4086 TAC Completion Specialist, FEMA, to South Area Supervisor, Off. of Emergency Mgmt., N.J. State Police Public Assistance Unit (Dec. 3, 2015, 1517 EST).
[10] Email from South Area Supervisor, Off. of Emergency Mgmt., N.J. State Police Public Assistance Unit, to Chief of Police, Sea Isle City Police Dep’t (Dec. 7, 2015, 1449 EST).
[11] Email from Region II Lead Appeals Analyst, FEMA, to Att’y Advisor, Pub. Assistance Appeals and Audits Branch, FEMA (July 12, 2017, 1324 EST) (providing a basic screenshot of the Feb. 3 submission to NJEM Grants).
[12] Email from Region II Lead Appeals Analyst, FEMA, to Att’y Advisor, Pub. Assistance Appeals and Audits Branch, FEMA (July 12, 2017, 1330 EST) (confirming language used by Applicant in the Feb. 3 submission).
[13] Id.; See Email from Chief of Police, Sea Isle City Police Dep’t, to South Area Supervisor, Off. of Emergency Mgmt., N.J. State Police Public Assistance Unit (Feb. 4, 2016, 1328 EST) [hereinafter Feb. 4, 2016 Email from Applicant] (noting additional documentation to be submitted); See also Email from Chief of Police, Sea Isle City Police Dep’t, to South Area Supervisor, Off. of Emergency Mgmt., N.J. State Police Public Assistance Unit (Feb. 26, 2016, 1509 PM EST) [hereinafter Feb. 26, 2016 Email from Applicant] (noting additional documentation to be submitted).
[14] Letter from Dep. Emergency Mgm’t Coordinator, City of Sea Isle City (March 1, 2016) (while the letter was dated March 1, 2016, NJEM Grants indicates that the letter was not uploaded until March 16, 2016).
[15] Letters from Public Assistance Unit Head, State of N.J., Off. of the Att’y Gen. Dep’t of Law and Pub. Safety, Div. of State Police, to Region II Reg’l Adm’r, FEMA (May 26, 2016).
[16] Letter from Sec. Chief, Appeals and Audits, Recovery Div., FEMA, to Governor’s Authorized Representative, State of N.J., Off. of the Governor, and Dep. Emergency Mgmt. Coordinator, City of Sea Isle City (Aug. 23, 2016).
[17] Id. at 2.
[18] Letter from Chief of Police, Sea Isle City Police Dep’t, to Sec. Chief, Appeals and Audits, Recovery Div., FEMA, at 1 (Sept. 20, 2016).
[19] Id. at 2.
[20] Letter from Region II Reg’l Adm’r, FEMA, to Governor’s Authorized Representative, State of N.J., Off. of the Governor, and Dep. Emergency Mgmt. Coordinator, City of Sea Isle City (Nov. 2, 2016) (attaching First Appeal Analysis).
[21] Id.
[22] Letter from Chief of Police, Sea Isle City Police Dep’t, to Region II Reg’l Adm’r, FEMA (Dec. 29, 2016).
[23] Email from South Area Supervisor, Off. of Emergency Mgmt., N.J. State Police Pub. Assistance Unit, to Chief of Police, Sea Isle City Police Dep’t (Nov. 10, 2016, 1415 EST).
[24] Letter from Sec. Chief, Appeals and Audits, Recovery Div., FEMA, to Governor’s Authorized Representative, State of N.J., Off. of the Governor, and Dep. Emergency Mgmt. Coordinator, City of Sea Isle City (Jan.  4, 2017).
[25] Email from Region II Lead Appeals Analyst, FEMA, to Att’y Advisor Pub. Assistance Appeals and Audits Branch, FEMA (July 12, 2017, 1625 EST) (attaching copies of the January 5, 2017 submission found in NJEM Grants, which included documentation).
[26] Letter from Alternate Governor’s Authorized Representative, State of N.J., Off. of the Att’y Gen. Dep’t of Law and Pub. Safety, Div. of State Police, to Assistant Adm’r, FEMA, at 2 (Feb. 24, 2017).
[27] Id.
[28] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423, 42 U.S.C. § 5189(a) (2007).
[29] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206 (2012).
[30] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 3, at 11 (Apr. 7, 2014).
[31] Id.
[32] While the determination memorandum attached to the July 9, 2015 letters do make mention of the 60 day appeal timeframe, such mention was not made in the context of providing the Applicant notice of its appeal rights.  Instead, it was offered as support for the untimeliness of the underlying request.  Accordingly, it is not considered adequate notice.  PW 1859 Determination Memo; PW 3419 Determination Memo.
[33] Feb. 4, 2016 Email from Applicant (stating that Applicant had submitted an appeal through NJEM Grants for PW 1859 and 3419, and all supporting documentation would be uploaded into the system within the next few days); See FEMA Second Appeal Analysis, Los Angeles County, FEMA-1884-DR-CA, at 3 (finding that a notice of an intent to appeal, which indicated documentation was to follow, would not constitute a timely appeal).
[34] Although the Grantee argues the February 3, 2016 submissions contained justification supporting the Applicant’s position, nothing in the administrative record supports this assertion.  NJEM Grants indicates no documentation was submitted until February 22, 2016, but the 60 day timeframe expired on February 5, 2016.  As such, the Applicant’s support documentation would have been considered untimely filed. See Feb. 26, 2016 Email from Applicant (noting additional information would be uploaded into NJEM Grants).
Last updated