Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4031
ApplicantVillage of Johnson City
Appeal TypeSecond
PA ID#007-38748-00
PW ID#(PW) 2277
Date Signed2018-03-20T00:00:00
Conclusion:  Pursuant to Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1), the Village of Johnson City’s (Applicant) first appeal was untimely.  As FEMA denies the New York State Division of Homeland Security and Emergency Services’ (Grantee) request to waive the Applicant’s 60 day appeal requirement under Stafford Act § 301, the second appeal is denied.
 
Summary
As a result of Tropical Storm Lee, the Applicant experienced flooding to its Department of Public Works’ maintenance building (Facility).  FEMA obligated $58,656.77 in funding under PW 2277 to restore the administrative offices of the Facility.  Thereafter, the Grantee submitted a request to change the scope of work (SOW), seeking approval of a hazard mitigation proposal.  In a letter dated February 10, 2017, FEMA denied the request to change the SOW, stating the mitigation requested was not on the list of approved mitigation measures and was also not cost effective.  FEMA notified the Applicant that its decision constituted a new determination, and as a result, advised the Applicant of its appeal rights and appeal procedural requirements, specifically, that it must submit an appeal to the Grantee within 60 days of notification of the determination.  The Applicant received the determination on February 21, 2017, but did not submit an appeal until it transmitted a letter to the Grantee dated July 14, 2017.  As a result, the FEMA Region II Regional Administrator denied the appeal as untimely.  On second appeal, the Grantee requests FEMA waive the Applicant’s untimeliness under Section 301 of the Stafford Act, based on extenuating conditions suffered by the Applicant, principally, the long delay in being able to restore its workspace to a useable condition, which resulted in ongoing need to operate out of a temporary location. 
     
 
Authorities and Second Appeals
  • Stafford Act §§ 301, 423(a).
  • 44 C.F.R. § 206.206(c)(1).
  • St. Thomas Univ., FEMA-1609-DR-FL, at 4 (June 8, 2017).
  • City of Waveland, FEMA-1604-DR-MS, at 2 (Mar. 28, 2012).
Headnotes
  • Stafford Act § 301 grants FEMA the authority to waive administrative conditions for assistance as would otherwise prevent the giving of assistance under programs if the inability to meet such conditions is a result of the major disaster.
  • The Applicant’s receipt of the February 10, 2017 determination, which triggered its 60 day timeframe to appeal, occurred more than five years after the disaster.  Furthermore, the Grantee concedes the Applicant continued its operations, albeit out of a temporary location.  Therefore, the Grantee has not demonstrated the delay in filing an appeal was the result of the disaster to allow waiver of the Applicant’s administrative requirements under Section 301.

 

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, Floor 4
Albany, NY 12242
 
Re:  Second Appeal – Village of Johnson City, PA ID 007-38748-00, FEMA-4031-DR-NY,
Project Worksheet (PW) 2277 – Appeal Timeliness 
 
Dear Deputy Commissioner Steigerwald:
 
This is in response to a letter from your office dated February 9, 2018, which transmitted the referenced second appeal on behalf of the Village of Johnson City (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of the request to change the scope of work to add a hazard mitigation proposal to PW 2277, based on an untimely first appeal submission.
 
As explained in the enclosed analysis, I have determined the Applicant’s first appeal was not submitted within the timeframe required by Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1).  Furthermore, the Grantee has not demonstrated the delay in filing an appeal was the result of the disaster to allow waiver under Stafford Act § 301.  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/
 
                    Keith Turi
                    Acting Assistant Administrator
                    Recovery Directorate
 
Enclosure
 
cc:       Thomas Von Essen
            Regional Administrator
            FEMA Region II
 

Appeal Analysis

Background
From September 7 to 11, 2011, Tropical Storm Lee caused flooding that damaged the Village of Johnson City’s (Applicant) Department of Public Works’ maintenance building (Facility).  FEMA wrote three Project Worksheets (PW) to fund repair and clean-up work associated with the disaster related damage to the Facility.  PW 2277 documented repairs to the administrative offices of the Facility, PW 2234 addressed debris removal and cleaning of the Facility, and PW 2351 detailed the replacement of the Facility’s equipment and contents.  FEMA approved $58,656.77 in costs to restore the Facility’s administrative offices in PW 2277. 
 
In a letter to FEMA dated February 10, 2014, the New York State Division of Homeland Security and Emergency Services (Grantee) submitted a request to amend PW 2277 and change the scope of work (SOW).  The Grantee argued that FEMA’s repair estimate was incorrect and did not accurately capture all the costs associated with restoring the Facility.  In addition, it recommended a hazard mitigation proposal (HMP) to elevate the Facility above the flood elevation, based on the increased project costs included in the amendment request.  In support, it transmitted a construction quote the Applicant solicited in July 2012, estimating (1) $292,500.00 in costs to repair the administrative portion of the Facility, and (2) $555,625.00 as the total costs for the HMP, which included restoration of the administrative offices on a raised second floor.  FEMA denied the requests and determined that (1) FEMA’s estimate had in fact captured the costs associated with restoring the Facility to its predisaster design, function, and capacity, and (2) the HMP was not cost effective.
 
The Grantee submitted a new request to change the SOW to FEMA by way of a letter dated March 9, 2016, with a supporting memorandum attached dated March 1, 2016.  In the memorandum, the Grantee requested FEMA change the SOW to reflect approval of a HMP.  It proposed FEMA combine PWs 2277, 2234, and 2351 into one large project in order to make the HMP cost effective.  The HMP only included $511,175.00 of the previous amount requested because the Grantee removed $44,450.00 in ineligible contingency expenses. 
 
In a letter addressed to the Grantee and the Applicant, dated February 10, 2017, FEMA denied the request to change the SOW, stating the mitigation requested was not on the list of approved mitigation measures and was also not cost effective.  Moreover, FEMA notified the Applicant that its decision constituted a new determination, and as a result, advised the Applicant of its appeal rights and appeal procedural requirements, specifically, that it must submit an appeal to the Grantee within 60 days of notification of the determination.  FEMA shipped the determination via UPS on February 16, 2017.  The Applicant received this package on February 21, 2017.[1]
 
First Appeal
 
In a letter to the Grantee dated July 14, 2017, the Applicant requested the Grantee appeal FEMA’s February 10, 2017 determination.  The Grantee forwarded the Applicant’s appeal, with a recommendation for approval, in an August 31, 2017 letter.  Furthermore, it attached a memorandum in support dated August 17, 2017, which stated the Applicant’s delayed appeal was due to the Applicant’s representative having an unusually high workload, resulting in large measure, from the long delay in being able to restore his workspace to a usable condition.
 
On September 14, 2017, FEMA transmitted a Final Request for Information to the Applicant and Grantee, noting that it appeared the Applicant’s July 14, 2017 appeal was not filed within the 60 day regulatory timeframe, as the Applicant received the SOW change denial letter on February 21, 2017.  FEMA stated that based on the information and documentation currently in the administrative record, it would deny the appeal.  Accordingly, FEMA provided both the Applicant and the Grantee an opportunity to submit any additional information and documentation they desired be included in the administrative record.  The administrative record does not contain a response from either the Applicant or the Grantee.
 
On November 6, 2017, the FEMA Region II Regional Administrator denied the appeal due to the Applicant’s untimely July 14, 2017 submission.
 
Second Appeal
 
By way of a letter dated December 12, 2017, the Applicant requested the Grantee appeal FEMA’s February 10 and November 6, 2017 determinations, and referenced, as support, the Grantee’s August 17, 2017 memorandum.
 
The Grantee forwarded the appeal, with a recommendation for approval, via a February 9, 2018 letter.  For support, it attached a memorandum dated February 5, 2018, in which the Grantee argues FEMA delayed responding to the requests to amend the PW and change the SOW, and as such, was itself previously untimely.[2]  It therefore contends denial of the first appeal based on an untimely submission was arbitrary and capricious.  Accordingly, it requests FEMA waive the untimeliness under Section 301 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act), based on extenuating conditions suffered by the Applicant, principally, the long delay in being able to restore its workspace to a useable condition.  The Grantee argues that the Applicant was “severely hampered through the ongoing need to operate out of a temporary location.”[3]
 
Discussion
 
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.”[4]  Implementing that provision, Title 44 Code of Federal Regulations (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.  
 
Section 301 of the Stafford Act additionally provides that FEMA “may, if so requested by the applicant State or local authorities, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance…if the inability to meet such conditions is a result of the major disaster.”
 
The Applicant received FEMA’s February 10, 2017 determination denying the request to change the SOW in order to address the proposed hazard mitigation measures, on February 21, 2017.  Therefore, it had until April 22, 2017, 60 days after receipt of the determination, to submit an appeal.  However, the Applicant did not submit its appeal until it transmitted a letter dated July 14, 2017, almost three months after the deadline to file an appeal expired.  Accordingly, its first appeal was untimely.   
 
The Grantee, however, argues that FEMA should waive the Applicant’s 60 day appeal requirement due to extenuating circumstances, specifically, the long delay suffered by the Applicant in being able to restore its workspace to a useable condition post disaster, which resulted in the ongoing need to operate out of a temporary location.  While Stafford Act § 301 grants FEMA the authority to waive administrative conditions for assistance that would otherwise prevent it from giving assistance “if the inability to meet such conditions is a result of the major disaster,” neither the Applicant nor the Grantee have demonstrated the Applicant’s submission of an untimely appeal was in fact a result of the disaster.  The Applicant’s receipt of the February 10, 2017 determination, which triggered its 60 day timeframe to appeal, occurred more than five years after the disaster.  Furthermore, the Grantee concedes the Applicant was continuing to operate, albeit out of a temporary location.  Consequently, the Grantee’s request to FEMA to waive the Applicant’s 60 day appeal requirement under Stafford Act § 301 is denied. [5]
 
Conclusion
 
Pursuant to Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1), the Applicant’s first appeal was untimely.  Furthermore, neither the Applicant nor the Grantee have demonstrated the delay in filing an appeal was the result of the disaster to allow waiver of the Applicant’s administrative requirements under Stafford Act § 301.  Therefore, the second appeal is denied.
 
[1] UPS Tracking No. 1Z4015W70196521817.
[2] Memorandum from Disaster Assistance Rep., N.Y. State Div. of Homeland Sec. and Emergency Servs. (Feb. 5, 2018) (noting that (1) the request to amend the PW was transmitted to FEMA on February 25, 2014, and FEMA responded to it on October 23, 2015, and (2) the request to change the SOW was sent to FEMA on March 10, 2016, and FEMA responded to it on February 10, 2017). 
[3] Id.
[4] 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) (2006).
[5] See FEMA Second Appeal Analysis, St. Thomas Univ., FEMA-1609-DR-FL, at 4 (June 8, 2017) (denying an Applicant’s request to waive the 60 day appeal timeframe requirement under Section 301, by finding that its failure to submit a timely appeal of an action taken at close-out was not the result of the disaster, as the disaster occurred four years prior to close-out); FEMA Second Appeal Analysis, City of Waveland, FEMA-1604-DR-MS, at 2 (Mar. 28, 2012) (rejecting a request to waive the appeal deadline under the authority granted in Section 301 of the Stafford Act, based on an Applicant’s claim that it filed an appeal more than two years after receipt of a notice of a determination because the impact from Hurricane Katrina presented a justified hardship (i.e. an administrative burden) that prevented the Applicant from preparing appeal documentation in a timely manner). 
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