Appeal Timeliness – Support Documentation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1609
ApplicantCity of Pompano Beach
Appeal TypeSecond
PA ID#011-58050-00
PW ID#PW) 1893
Date Signed2018-02-27T00:00:00

Conclusion: The City of Pompano Beach (Applicant) has (1) established December 15, 2015, was the first time it received notice from the Grantee concerning the determinations in Version 5, and (2) demonstrated it never received the Final Request for Information (RFI).  Accordingly, FEMA remands this appeal to Region IV for issuance of a new Final RFI and first appeal decision to adjudicate the substantive merits of the appeal.

 

Summary Paragraph

As a result of Hurricane Wilma, the Applicant suffered strong winds and flooding from October 23 through November 18, 2005.  From 2005 through 2007, FEMA obligated multiple versions of Project Worksheet (PW) 1893 to fund costs associated with repairing and replacing various items in the Applicant’s municipal golf course.  On August 14, 2015, FEMA approved PW 1893 (Version 5), obligating $10,860.00 in funding but denying all other requested costs.  On August 21, 2015, the State of Florida Division of Emergency Management (Grantee) posted Version 5 and the Project Application Summary (P2) package on its project management database.  On September 21, 2015, the Grantee posted a letter (addressed to the Applicant), which provided notice of the P2 package. The Applicant, however, contended it only discovered the existence of Version 5 when it accessed the database much later, and memorialized this in a December 14, 2015 email.  In response, the Grantee emailed the Applicant on December 15, 2015, stating the email would serve as notification of the P2 package for PW 1893 (Version 5).  In a February 10, 2016 letter, the Applicant appealed the denial of costs in Version 5, requesting FEMA reinstate an additional $111,082.59 in funding.  FEMA transmitted a Final RFI to the Grantee, requesting documentation that the Applicant’s appeal was submitted to FEMA within the required timeframe specified by 44 C.F.R. § 206.206(c).  FEMA Region IV’s Regional Administrator (RA) denied the appeal as untimely.  The RA determined that the Grantee provided notice of FEMA’s determination concerning Version 5 on September 21, 2015, through the Grantee’s project management database.  Consequently, the RA concluded the first appeal, dated February 10, 2016, was submitted beyond the 60 day timeframe required by 44 C.F.R. § 206.206(c)(1).  The Applicant appealed FEMA’s denial, arguing it did not receive a written notice of FEMA’s determination concerning Version 5 until December 15, 2015, because it had not received notification of the postings uploaded on the Grantee’s database.  Furthermore, it affirmed it never received the Final RFI.  The Grantee supported the Applicant’s second appeal, confirming that (1) it did not transmit the September 21, 2015 notification externally to the Applicant and (2) it did not have documentation demonstrating it sent the Final RFI to the Applicant. 

 

Authorities and Second Appeals

  • Stafford Act § 423(a).

  • 44 C.F.R. § 206.206(a), (c)(1).

  • Public Assistance Program Appeal Procedures, Version 3, at 11-12, 14, App. E.

  • Miami-Dade Cty., FEMA-1345-DR-FL, at 2.

 

Headnotes

  • 44 C.F.R. § 206.206(c)(1) requires applicants to submit appeals within 60 days of receipt of the notice of the action that is being appealed.  Pursuant to the Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual), the date the applicant receives notice of the determination from the grantee, serves as the date the applicant’s 60-day appeal timeframe begins to run.

    • The Applicant has established December 15, 2015, was the first time it received notice of Version 5 from the Grantee.   Therefore, it submitted its February 10, 2016 first appeal within 60 days of receiving notice of the determination.  Consequently, the appeal is remanded for issuance of a new first appeal decision to adjudicate the merits.

  • The Appeals Manual provides that when a RA is considering denying a first appeal in whole or in part, the RA must issue a Final RFI to the applicant.

The Applicant affirms it never received the Final RFI and the Grantee confirms it has no documentation indicating it ever transmitted the Final RFI to the Applicant.  FEMA has no documentation that contradicts either assertion.  Accordingly, the appeal is remanded for issuance of a new Final RFI to the Applicant

Appeal Letter

Mr. Wesley Maul

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

 

Re:  Second Appeal – City of Pompano Beach, PA ID: 011-58050-00, FEMA-1609-DR-FL, Project Worksheet (PW) 1893 – Appeal Timeliness – Support Documentation

 

Dear Mr. Maul:

 

This is in response to a letter from your office dated December 4, 2017, which transmitted the referenced second appeal on behalf of the City of Pompano Beach (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $111,082.59 based on the Applicant’s untimely first appeal.

 

As explained in the enclosed analysis, I have determined the Applicant has established it did not receive notice from the Grantee of the obligation of PW 1893 (Version 5) until December 15, 2015.  Moreover, the Applicant has also established it never received the Final Request for Information (RFI).  Accordingly, I am granting this appeal and remanding it to Region IV to issue a Final RFI and first appeal decision to adjudicate the substantive merits of the appeal. 

 

Please inform the Applicant of my decision.  The Applicant’s right to a second appeal is not impacted by this decision.  It may re-submit a second appeal pursuant to 44 C.F.R. § 206.206 if dissatisfied with the Regional Administrator’s decisions regarding this matter.     

 

                                                Sincerely,

 

/S/

 

                                                                                             Christopher Logan

                                                                                             Director

                                                                                             Public Assistance Division                                                                                   

Enclosure

 

cc: Gracia B. Szczech

      Regional Administrator

      FEMA Region IV

 

Appeal Analysis

Background

As a result of Hurricane Wilma, the City of Pompano Beach (Applicant) suffered strong winds and flooding from October 23 through November 18, 2005.  From 2005 through 2007, FEMA obligated multiple versions of Project Worksheet (PW) 1893 to fund costs associated with repairing and replacing various items in the Applicant’s municipal golf course, damaged as a result of the disaster.  On October 30, 2014, however, FEMA approved PW 1893 (Version 4), deobligating $193,562.73 in previously awarded funding because of anticipated insurance proceeds.  The Applicant submitted a February 24, 2015 letter to the State of Florida Division of Emergency Management (Grantee), requesting its assistance to address FEMA’s deobligation.[1]  From June through October 2015, the Applicant, Grantee, and FEMA, discussed the Applicant’s request for reconsideration of the deobligation via email communications.  On October 28, 2015, the Grantee notified the Applicant by email that FEMA had concluded it would not alter its previous determination.  Accordingly, it advised the Applicant it had 60 days from October 19, 2015, to appeal the previous determination.

 

On August 14, 2015, during the timeframe that FEMA, the Grantee, and the Applicant, were engaged in reconsideration discussions of Version 4, FEMA approved PW 1893 (Version 5).  In Version 5, FEMA reiterated its prior determination that there were many costs for which insurance coverage was available, but also noted new determinations.  For instance, FEMA concluded that (1) even though it had insurance coverage, the Applicant had failed to obtain and maintain adequate levels of insurance, and (2) numerous costs were ineligible because the associated work was outside the approved scope of work (SOW).  Both of these new determinations resulted in deobligations of Public Assistance (PA) funding.  FEMA conversely determined that the Applicant had in fact documented that other items of work were eligible and within the approved SOW.  Consequently, it reinstated and obligated $10,860.00 in funding for those eligible costs, while denying all other requested costs.  On August 21, 2015, the Grantee posted the PW and Project Applicant Summary (P2) package on its project management database.[2]  Furthermore, on September 21, 2015, the Grantee posted an August 28, 2015 letter to its database, which included language notifying the Applicant of the P2 package and the Applicant’s appeal right and procedural requirements.      

 

On December 14, 2015, the Applicant sent an email to inform the Grantee that while it was finalizing arguments to appeal Version 4 of PW 1893, it went into the project management database and only then discovered FEMA’s obligation of PW 1893 (Version 5).  It pointed out that neither the Grantee nor FEMA had ever mentioned Version 5 in the multiple back and forth email correspondences that discussed reconsideration of Version 4, and asserted it had not received official notification of Version 5.  As support, the Applicant attached a copy of a note from the Grantee’s website, dated September 21, 2015, which listed only a representative for the Grantee as being notified of Version 5’s obligation.  It requested the Grantee verify that notice of Version 5 had in fact been previously sent to the Applicant.  The Grantee did not provide any documentation that confirmed the notice was previously transmitted to the Applicant.  Consequently, it transmitted an email to the Applicant on December 15, 2015, stating the email would serve as notification of the P2 package for PW 1893 (Version 5) and that the 60 day timeframe to appeal would begin as of the date of the email.[3] 

 

First Appeal

The Applicant transmitted its first appeal of PW 1893 (Version 5) to FEMA through the Grantee, by way of a letter dated February 10, 2016, requesting that FEMA reinstate $111,082.59 in PA funding.  First, it contended FEMA erred when it applied the insurance deductions because the deobligated funding covered items that were either not included in its insurance policy or did not qualify for insurance reimbursement due to specific policy provisions and deductibles.  Second, it asserted that it obtained and maintained adequate insurance coverage.  Third, it disputed FEMA’s determination that certain work items were outside the original SOW.  Lastly, it argued Section 705(c) of the Stafford Act[4] procedurally prohibited FEMA from deobligating the funding because (1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.  The Grantee forwarded the Applicant’s appeal by a letter dated March 11, 2016, recommending that FEMA reinstate the requested funding.

 

On January 26, 2017, FEMA transmitted a Final Request for Information (RFI) to the Grantee, requesting documentation that the Applicant’s appeal was submitted to FEMA within the required timeframe specified by Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c).[5]  The administrative record does not contain a response from either the Grantee or the Applicant.

On September 27, 2017, FEMA Region IV’s Regional Administrator (RA) issued its first appeal decision denying the Applicant’s appeal.  The RA determined that the Grantee provided notice of FEMA’s determination concerning Version 5 on September 21, 2015, through the Grantee’s project management database.  As such, the RA determined the Applicant’s appeal, dated February 10, 2016, was untimely because it was submitted beyond the 60 day timeframe required by 44 C.F.R. § 206.206(c)(1).[6]  Based on the untimely submission, the RA determined the Applicant had exhausted its first appeal rights and Section 705(c)’s prohibition against recovery of funds was therefore not applicable.  The RA did not make a determination on the substantive merits of the appeal.

 

Second Appeal

In a letter dated November 21, 2017, the Applicant appeals the RA’s decision and requests that FEMA remand the appeal for a resolution on the substantive issues raised in the first appeal.  The Applicant argues it did not receive a written notice of FEMA’s determination concerning Version 5 until December 15, 2015.  Therefore, it asserts its first appeal was timely as it was submitted within 60 days of that date.  It further argues that the Grantee’s action of September 21, 2015, posting the notice on its database, does not constitute written notice of FEMA’s determination, as applicants must first take the step of accessing the database before they can see whether there are any notices.  Lastly, the Applicant states it never received the Final RFI.

 

The Grantee forwarded the Applicant’s second appeal to FEMA by letter dated December 4, 2017, requesting FEMA reinstate $111,082.59 in PA funding.  In its letter, the Grantee confirms the September 21, 2015 notification was not transmitted externally to the Applicant therefore, contends the Applicant was not properly notified of the documents uploaded onto its database. 

 

Accordingly, it asserts the Applicant’s first appeal was timely because December 15, 2015 was the first date the Applicant received written notice of the Version 5 determinations.  Moreover, the Grantee addresses the Applicant’s affirmation it did not receive the Final RFI.  The Grantee confirms it did not post the Final RFI on its database and states it also does not have any documentation demonstrating it sent the Final RFI to the Applicant.  Consequently, in addition to the requested reinstatement of funding, the Grantee specifically requests FEMA provide the Applicant with the opportunity to respond to the Final RFI and have its appeal adjudicated on the substantive merits.

 

Discussion

Appeal Timeliness

 

Section 423(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 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.”[7]  Implementing that provision, 44 C.F.R. § 206.206(c)(1) requires applicants to submit appeals within 60 days of receipt of the notice of the action that is being appealed.[8]  According to the Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual), the date the applicant receives notice of the determination from the grantee, serves as the date the applicant’s 60 day appeal timeframe begins to run, regardless of whether the applicant previously learned of the determination.[9]

 

Here, FEMA approved Version 5 while FEMA, the Grantee, and the Applicant, were engaged in reconsideration discussions concerning the deobligation of funding in Version 4.  Even though the reconsideration discussions continued until October 2015, two additional months after FEMA obligated Version 5, the email communications do not contain any reference to, or notification of, the obligation of Version 5.  Furthermore, although the Grantee posted (1) Version 5 and the P2 package to its database in August 2015, and (2) the letter formalizing the determination in September 2015, the Grantee concedes it did not notify the Applicant of these online postings. 

 

Consequently, the Applicant was not aware of Version 5 until it independently accessed the Grantee’s database in preparation for filing an appeal of Version 4’s deobligation. 

 

Although the Applicant admits it had knowledge of Version 5 in its December 14, 2015 email, December 15, 2015 was the first time it actually received notice from the Grantee concerning the determinations in Version 5.[10]  Therefore, the Applicant has established it submitted its February 10, 2016 first appeal within 60 days of receiving notice of the Version 5 determinations.  Accordingly, the appeal must be remanded for a first appeal decision that adjudicates the substantive merits of the appeal.  Timeliness aside, this appeal also must be remanded for issuance of a new Final RFI, as discussed in more detail below.

 

Support Documentation

When a RA is considering denying a first appeal in whole or in part, the RA must issue to the applicant a Final RFI, explaining the key issues on appeal and requesting that the applicant provide additional information that could support its appeal.[11]

 

Although FEMA issued a Final RFI that was addressed to both the Grantee and the Applicant, the Applicant affirms it never received the Final RFI.  The Grantee supports this declaration by confirming it has no documentation indicating it ever transmitted the Final RFI to the Applicant.  Consistent with these assertions, FEMA notes that the available documentation only reflects receipt of the Final RFI by the Grantee.[12]  Therefore, as the Applicant has established it did not receive the Final RFI, the appeal should be remanded for re-issuance of the Final RFI so that the Applicant may have the opportunity to fully respond.  In accordance with FEMA’s determination concerning the issue of timeliness addressed above, the new Final RFI should address the substantive merits of the appeal.  After this, a new first appeal decision must be issued taking the Applicant’s Final RFI response into consideration, at which point the administrative record will close.

 

Conclusion

Based on the above discussion, the RA is instructed to issue a new Final RFI[13] identifying the substantive issues that will be subsequently addressed in a new first appeal decision.

 

[1] Letter from Emergency Mgr., City of Pompano Beach, to Dir., State of Fl. Div. of Emergency Mgmt. (FDEM), at 1 (Feb. 24, 2015) (“Due to the fact that the [Applicant] just recently learned of the issues via the deobligation[], it would appreciate the opportunity to respond to the FEMA requested information that could reverse all or part of the deobligation[] and avoid a lengthy and costly appeal process….”).

[2] This appeal references the Grantee’s project management database, otherwise known as www.FloridaPA.org, a web-based system used by the State of Florida and its municipalities to manage and track all aspects of the PA grants process including appeals.  See FEMA Second Appeal Analysis, City of Pensacola, FEMA-1551-DR-FL, at 5 (Mar. 22, 2017) (“Applicants have access through individual accounts.  The system provides a mechanism to submit documentation for appeals, enables the exchange of communication between the Grantee and Applicant, and automatically records the dates of all actions performed by those using the system.”).

[3] Email from Rep., FDEM, to Senior Program Mgr., Witt O’Brien’s (Dec. 15, 2015; 11:23 EST) (“This email will serve as notification of the [P2] package for PW 1893, Version 5, notification, which was not received by your office, is attached.  The 60 day time period for appeal will begin as the date of this email.”).

[4] The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988, Pub. L. No. 93-288, § 705(c), 42 U.S.C. § 5205(c) (2005).

[5] Although the January 26, 2017 letter is addressed to both the Grantee and the Applicant, there is no documentation demonstrating it was sent to, or received by, the Applicant; see generally Email from Rep., FDEM, to Lead Appeals Analyst, FEMA Region IV (Jan. 26, 2017; 15:59 EST) (confirming the Grantee’s receipt of the Final RFI, transmitted electronically); UPS Tracking No: 1Z4014FE0145231852 (confirming the Grantee received a hard copy of the Final RFI on January 30, 2017).  

[6] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(1) (2005).

[7] Stafford Act § 423(a).

[8] 44 C.F.R. § 206.206(c)(1).

[9] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 3, at 11-12 (Apr. 7, 2014) [hereinafter Appeals Manual] (in effect at the time of FEMA’s obligation of PW 1893 (Version 5)).

[10] This second appeal decision makes no determination as to the sufficiency of the content of the notice, only the date of its receipt. 

[11] Appeals Manual, at 14, App. E; FEMA Second Appeal Analysis, Miami-Dade Cty., FEMA-1345-DR-FL, at 2 (Oct. 20, 2017).

[12] See generally Email from Rep., FDEM, to Lead Appeals Analyst, FEMA Region IV (Jan. 26, 2017; 15:59 EST) (confirming the Grantee’s receipt of the Final RFI, transmitted electronically); UPS Tracking No: 1Z4014FE0145231852 (confirming the Grantee received a hard copy of the Final RFI on January 30, 2017). 

[13] FEMA will issue the Final RFI consistent with the procedures outlined in Version 4 of the Appeals Manual.

Last updated