Appeal Timeliness – Support Documentation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1858
Applicant	City of Atlanta
Appeal Type	Second
PA ID#	121-03E97-00
PW ID#	PW) 1281
Date Signed	2018-05-10T00:00:00

Conclusion:  The City of Atlanta’s (Applicant) first appeal of PW 1281 (Version 0) is untimely because the Georgia Emergency Management and Homeland Security Agency (Grantee) submitted the appeal beyond the 60 day timeframe required by 44 C.F.R. § 206.206(c)(2).  Accordingly, the Applicant’s second appeal is denied.

 

Summary

From September 18 through October 8, 2009, the Applicant experienced severe thunderstorms and flooding.  FEMA determined the Applicant provided documentation to support only $36,727.53 in restoration costs for the facility out of the more than $1 million it requested.  Consequently, in February 2011, FEMA approved Version 0 of PW 1281, obligating $36,727.53 in funding.  Within 60 days of receiving notice of Version 0’s determination, the Applicant submitted an appeal to the Grantee via a letter dated April 28, 2011.  In a letter dated August 17, 2011, the Grantee requested FEMA review the PW.  In response to a Final Request for Information (Final RFI), both the Applicant and the Grantee conceded that the date on the Grantee’s first appeal letter of Version 0 was at least 40 days beyond the required regulatory 60 day timeframe.  On January 2, 2018, the FEMA Region IV Regional Administrator (RA) denied the appeal, determining it was untimely as the Grantee had forwarded the Applicant’s appeal beyond the required 60 day timeframe.  The RA noted that FEMA did not receive the appeal package from the Grantee until June 19, 2014.  The Applicant submitted its second appeal by letter dated March 1, 2018, arguing that (1) 44 C.F.R. § 206.206(c)(2) abrogates an Applicant’s statutory right of appeal, and that (2) FEMA’s action of denying appeals based solely on grantees’ untimeliness, was a new policy, in violation of Section 325(a) of the Stafford Act.  Moreover, the Applicant contends FEMA did not include all supporting documentation the Applicant transmitted on first appeal.  As a result, the Applicant requests a copy of the actual documentation contained in the administrative record index.

     

Authorities and Second Appeals

• Stafford Act §§ 325(a), 423(a), (c).
• 44 C.F.R. §§ 206.32(d), 206.44, 206.201(e), 206.202, 206.206(c).
• Disaster Assistance, 55 Fed. Reg. 2,297.
• PA Guide, at 86, 113.
• Public Assistance Program Appeal Procedures, Version 4, at 13.
• Town of Windermere, FEMA-1561-DR-FL, at 4; Tex. Dep’t of Aging and Disability Servs., FEMA-1791-DR-TX, at 5; Broward Cty., FEMA-1609-DR-FL, at 4-5; Roman Catholic Archdiocese of Miami, FEMA-1602-DR-FL, at 3; Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4; City of Scotts Valley, FEMA-1203-DR-CA, at 3

Headnotes

• Per 44 C.F.R. § 206.206(c)(2), a grantee must review and forward an applicant’s appeal to FEMA within 60 days of receipt. 
  • The Grantee submitted the appeal to FEMA almost three years after the 60 day deadline expired, via a letter that was dated at least 40 days beyond the 60 day transmission timeframe.  Thus, the appeal is untimely.
• Under Stafford Act § 325(a), FEMA cannot apply new or modified policies without a notice and comment period and may not apply them retroactively.
  • FEMA provided a notice and comment period for 44 C.F.R. § 206.206(c)(2).  Thus, it did not retroactively apply a new policy by enforcing the 60 day timeline for grantees, as the deadline provided by regulation has remained unchanged since 1990. 

• FEMA’s Public Assistance Program Appeal Procedures provides that when FEMA is considering denying a first appeal, the RA must issue the applicant a Final RFI with an attached administrative record index.  It further states that the administrative record closes upon issuance of the first appeal decision.
  • All documentation the Applicant submitted during the first appeal is included in the administrative record, as demonstrated by the administrative record index.  Moreover, as the administrative record is closed, the request for a copy of the administrative record’s actual documentation is denied.
     

 

Appeal Letter

Appeal Analysis

Background

 From September 18 through October 8, 2009, the City of Atlanta (Applicant) experienced severe thunderstorms and flooding.  FEMA prepared an initial draft of Project Worksheet (PW) 1281, documenting damage to the equipment of a water treatment plant’s ultra violet disinfection and treatment system (Facility) that resulted from loss of electricity for several days and flooding.  In the initial PW draft, FEMA estimated restoration costs of $1,097,808.33 to replace the damaged components of the Facility (e.g., 720 quartz sleeves, 720 lamps, 720 ballasts, etc.). 

 

On March 17, 2010, FEMA visited the Facility to perform a site inspection in order to verify costs.  As a result of the inspection and a lack of supporting documentation, FEMA reduced the eligible material replacement and force account labor (FAL) costs, denying $1,061,080.80 in previously estimated costs.  On February 15, 2011, FEMA approved Version 0 of PW 1281, obligating $36,727.53 in funding based on documentation that supported costs associated with 30 ballasts, 20 lamps, 20 boots, and 73 wipers.  By way of a March 1, 2011 letter,[1] the Georgia Emergency Management and Homeland Security Agency (Grantee) transmitted PW 1281 (Version 0) and the project application summary (P.2) package to the Applicant. 

 

First Appeal

 

The Applicant appealed FEMA’s determination in a letter to the Grantee dated April 28, 2011, disputing the disallowance of costs to replace “virtually all of the components” of the Facility.[2]  It emphasized that the amount of eligible costs obligated ($36,727.53), was only 3 percent of the estimate contained in the original PW draft ($1,097,808.33).  Furthermore, it contended that the FEMA project officer who inspected the documentation six months after the disaster in March 2010 incorrectly disallowed costs based on a lack of documentation.  First, it asserted that invoices, which served as supporting documentation for the costs associated with replacing component parts, were attached to the initial PW.  It submitted the referenced invoices as an exhibit.  Second, it argued that during the first month and a half after the disaster was declared and Public Assistance (PA) was awarded, it used FAL to install the replacement parts needed as a result of the disaster.  That said, it conceded that the four employees listed as FAL did not document on their timesheets the amount of time spent on the approved project work versus the amount of time performing normal duties.  Therefore, the Applicant stated that even if its deficiency in FAL recordkeeping arguably supported the denial of FAL costs, there was still ample documentation to support the costs associated with purchasing replacement component parts, which totaled more than $1 million. 

 

The Grantee wrote a letter dated August 17, 2011, to forward the Applicant’s appeal to FEMA, in which it requested FEMA review the PW.

 

Unrelated to the first appeal, on October 21, 2014, FEMA approved PW 1281 (Version 1), deobligating $36,526.92 in funding due to anticipated flood insurance proceeds.  This left a remaining $200.61 in obligated funding for direct administrative costs.  The Grantee transmitted Version 1 and the P.2 to the Applicant with a letter dated October 27, 2014.  The Applicant received the letter on November 3, 2014.

 

In a December 29, 2014 letter to the Grantee, the Applicant appealed FEMA’s action of obligating only $200.61 in funding.[3]  It incorporated by reference the arguments raised in its April 28, 2011 appeal, and additionally, asserted that the reduction for anticipated flood insurance proceeds was erroneous as FEMA had discretion to provide PA during the pendency of litigation between the Applicant and its insurer (who denied any additional proceeds were due under the policy).  The Applicant requested approval of total actual restoration costs in the amount of $1,274,950.54.  The Grantee forwarded the Applicant’s appeal to FEMA with a letter dated January 9, 2015.

 

On August 31, 2017, FEMA transmitted a Final Request for Information (RFI) to the Applicant and the Grantee, notifying them that the administrative record did not contain supporting documentation demonstrating the Grantee transmitted the Applicant’s first appeal for PW 1281 (Version 0) to FEMA within 60 days of receipt as required by Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2).[4]  The Final RFI noted that the Applicant’s first appeal for PW 1281 (Version 0) was dated April 28, 2011, but the Grantee’s letter was dated August 17, 2011, more than 100 days later.  It then stated FEMA did not receive the Grantee’s appeal package until June 19, 2014, more than 33 months following the date of the Grantee’s letter.  As a result, FEMA requested documentation demonstrating the Grantee forwarded the Applicant’s first appeal to FEMA within the 60 day appeal timeframe.  FEMA attached the administrative record index to the Final RFI, which listed the documents FEMA considered as part of the appeal.  The index included an entry for a Disaster Assistance Regional Tracking System Report, which was the documentation FEMA relied upon to demonstrate it received the Grantee’s August 17, 2011 appeal transmission on June 19, 2014.

 

The Applicant responded to the Final RFI in a letter dated September 15, 2017, in which it posited three main arguments.  First, it contended that if FEMA denied the appeal based solely on the Grantee’s untimely submission, that action would deny the Applicant its right of appeal as afforded under Section 423(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act),[5] and would, therefore, be contrary to law.  It stated that the Stafford Act does not provide a role for grantees in the appeal process, only applicants and FEMA, and noted that FEMA added grantees to the process through regulation.  Moreover, it pointed out that 44 C.F.R. § 206.206 allows any applicant to file appeals within a 60 day appeal timeframe.[6]  Furthermore, it emphasizes the inclusion of “must” in 44 C.F.R. § 206.206(c)(1) to describe the appellant’s appeal submission obligation, versus the use of “will” in 44 C.F.R. § 206.206(c)(2) and (c)(3), to reference the grantee’s appeal transmittal obligation and FEMA’s disposition obligation, respectively, to demonstrate that a denial would not constitute fair and impartial consideration of appeals[7] nor would it preserve the right of appeal guaranteed to applicants by the Stafford Act § 423(a).  Additionally it stated that denying the Applicant’s appeal based on the Grantee transmitting the appeal package 40 days past the 60 day timeframe would be hypocritical, as FEMA did not take action on the first appeal until it issued the Final RFI six years after the Applicant’s initial filing. 

 

Second, it asserted that FEMA’s change in policy since 2017, of denying appeals based solely on a grantee’s untimely appeal transmission, violated Section 325 of the Stafford Act[8] as the policy is being applied retroactively and without public notice and comment. 

 

Third, notwithstanding the above arguments raised, it stated that because both the Applicant and the Grantee timely transmitted the appeal of PW 1281 (Version 1), FEMA should find that the Applicant timely appealed the entire disallowance of costs associated with PW 1281.  As support, it stated that there was no language in the Stafford Act, FEMA regulation, or any appeal guidance in effect when the Applicant appealed PW 1281 (Version 0) that suggested an applicant could not appeal any aspect of a PW version transmitted to an applicant by the grantee.[9] 

 

The Grantee forwarded the Applicant’s response to FEMA by way of a letter dated September 19, 2017.  It acknowledged its 40 day delay in forwarding the Applicant’s appeal, and also stated that it had no explanation as to why FEMA did not receive the appeal for three years after it was submitted.

 

On January 2, 2018, the FEMA Region IV Regional Administrator (RA) issued a first appeal decision denying the Applicant’s appeal.  The RA found the Applicant’s appeal of the determination made under PW 1281 (Version 0) was untimely as neither the Applicant nor the Grantee dispute the Grantee’s transmittal of the first appeal was at least 40 days beyond the 60 day appeal timeframe established by 44 C.F.R. § 206.206(c)(2).  Moreover, the RA noted that regardless of the date of the Grantee’s letter of transmittal, FEMA did not receive the Applicant’s first appeal until June 19, 2014, almost 38 months after the Grantee received it.  Finally, the RA stated that eligibility decisions, merely reiterated in a subsequent version of a PW, do not create new appeal rights.  Accordingly, the RA concluded the first appeal of Version 0’s determination (merely repeated in Version 1) was untimely, and consequently, did not address the substantive issues raised concerning that appeal.

 

However, the RA acknowledged that the insurance related determination present in PW 1281 (Version 1) was, in fact, a new eligibility decision.  Therefore, it triggered new appeal rights and new appeal timeframes, which both the Applicant and the Grantee satisfied; the RA concluded that the appeal concerning the insurance related determination was timely filed with the Grantee, and timely submitted to FEMA.  Consequently, the RA stated the insurance related issue contained in PW 1281 (Version 1) would be addressed in a separate decision. 

 

Second Appeal

 

The Applicant appeals FEMA’s denial in a March 1, 2018 letter, requesting that FEMA consider the Applicant’s appeal on the merits, and seeking reimbursement of actual restoration costs in the amount of $1,274,749.93.[10]  The Applicant notes that it met every statutory and regulatory appeal deadline for both of its first appeals, and although the Grantee forwarded the appeal of PW 1281 (Version 0) 40 days late, the Grantee timely forwarded the appeal of PW 1281 (Version 1).  In contrast, the Applicant states that other than initially writing the PW draft within three months of the disaster, FEMA has not met any statutory or regulatory deadline applicable to this project.  Therefore, FEMA’s determination that the Grantee’s one administrative lapse almost eight years ago defeats the Applicant’s statutory right of appeal, and is contrary to law, to fairness and common sense, and to FEMA’s mission of providing timely assistance to local governments suffering major losses due to a major disaster.  As support for its request to consider the appeal on the merits, the Applicant puts forth six arguments.

 

First, the Applicant states its timely appeal of PW 1281 (Version 1), disputing the deobligation of all but $200.61 in costs and challenging the entire amount of assistance, satisfied all statutory and regulatory requirements, as it was a timely filing of “any” determination and decision for this project.  It reiterates the arguments made on first appeal concerning this issue and also notes that in contrast to the policy stated in the first appeal decision, that key issues of a project must be appealed immediately, some issues need not be resolved until closeout.  Therefore, the Applicant states FEMA’s failure to provide notice of what can and cannot be deferred to closeout is simply not a fair and impartial process as required by the Stafford Act.[11]   

 

Second, the Applicant asserts that FEMA’s refusal to consider its April 28, 2011 appeal denies the Applicant its statutory right of appeal and violates the Stafford Act’s mandate that FEMA administer appeals fairly and impartially.  It reiterates the arguments raised on first appeal concerning this issue.  Third, the Applicant states that the Grantee’s role is simply to review appeals for FEMA; thus, any delay in transmitting the appeal cannot be imputed to the Applicant.  The Applicant notes that FEMA inserted grantees into the appeals process by regulation, instructing applicants to file their appeals with the State rather than FEMA, which was consistent with the Stafford Act.  However, in directing grantees to assist it in reviewing appeals and providing recommendations for how to resolve appeals, FEMA essentially made the grantee an agent of FEMA.  After timely filing an appeal, an applicant has no control whatsoever on the action taken by a grantee.  Therefore, a grantee not timely forwarding an appeal is an action more appropriately imputed to FEMA, rather than an applicant.  Fourth, the Applicant contends that FEMA policy in effect at the time of the disaster allowed grantees to extend the time for forwarding appeals if the grantee identified additional information it wanted to review prior to forwarding an appeal.[12]

 

Fifth, the Applicant declares that FEMA’s action of denying appeals based solely on a grantee’s untimely transmission, violates Stafford Act § 325, as this is a change in policy only consistently followed within the last year, which could result in a significant reduction of assistance, and which is being applied retroactively without public notice and comment.  As support, the Applicant cites to prior second appeal decisions in which it asserts appeals were transmitted beyond the 60 day timeframe, but FEMA nonetheless reached determinations on the substantive issues raised.

 

Sixth, the Applicant asserts that FEMA failed to properly maintain the administrative record, resulting in prejudice to the Applicant.  It requests FEMA add all documentation that (1) supports its assertion it did not receive the Applicant’s first appeal of PW 1281 (Version 0) until 2014, and (2) indicates FEMA’s response to the appeal after it was received, to the administrative record.  Further, it alleges that FEMA purposely did not include portions of the first appeal documentation submitted in response to PW 1281 (Version 1), and as such, requests the entirety of that appeal and its supporting documentation be added to the administrative record.  Lastly, it requests FEMA provide all of the actual documentation listed in the administrative record index to the Applicant, as the administrative record index previously provided to the Applicant only references the title of each document, not the actual documentation. 

 

The Grantee forwarded the appeal to FEMA by way of a March 5, 2018 letter, stating it fully supports the appeal.

 

Discussion

 

Appeal Timeliness

 

Section 423(a) of the Stafford Act provides that “any decision regarding eligibility for . . . 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.”  Within 60 days of receiving an applicant’s appeal, a grantee will review and forward the appeal to FEMA with a written recommendation.[13]  If either the Applicant or the Grantee fail to meet these deadlines, the appeal is untimely and the applicant’s appeal rights lapse.[14]  Neither the Stafford Act nor 44 C.F.R. authorize FEMA to grant time extensions for filing appeals.[15]

 

Here, both the Applicant and the Grantee acknowledge that the Grantee transmitted the Applicant’s April 28, 2011 first appeal letter to FEMA beyond the 60 day regulatory timeframe.  Moreover, the RA noted in the first appeal decision that FEMA did not actually receive the appeal until June 19, 2014, almost three years beyond the 60 day transmittal deadline.  Thus, whether FEMA relies on the date of the Grantee’s transmittal letter, or the date the RA notes FEMA received the first appeal package, the conclusion remains the same – the first appeal of PW 1281 (Version 0) was untimely.[16]

 

The Applicant contends that FEMA policy in effect at the time of the disaster allowed grantees to extend the time for forwarding appeals if the grantee identified additional information it wanted to review prior to forwarding an appeal.  Specifically, the Applicant cites to FEMA policy that explains “[t]he State reviews the appeal documentation and request[s] additional information if necessary.  The State then prepares a written recommendation on the merits of the appeal and forwards that recommendation to FEMA within 60 days of its receipt of the appeal letter or receipt of additional information that it had requested.”[17]  While this provision describes the procedures for a grantee to submit its written recommendation, the Grantee’s deadline to forward the Applicant’s appeal to FEMA is stipulated under 44 C.F.R. 206.206(c)(2).  FEMA policy allows the Grantee to submit its written recommendation of the appeal within 60 days of receiving additional information it requested after reviewing the Applicant’s appeal.  However, the regulatory requirement to forward the appeal to FEMA within 60 days of receipt still applies, regardless of whether the Grantee submits a written recommendation or has deferred its written recommendation pending the receipt of additional information it requested from the Applicant.[18]  FEMA policy must be read in accordance with governing regulation; accordingly, there are no provisions under FEMA regulation or policy that provide grantees with the authority to extend the appeal submission timelines stipulated under 44 C.F.R. § 206.206.[19]

 

Alternatively, the Applicant contends its timely appeal of PW 1281 (Version 1) should be considered a timely appeal of all determinations previously made for this project.  However, the 60 day appeal timeframe, as outlined in Stafford Act § 423(a) and 44 C.F.R. § 206.206, applies to new eligibility determinations.  As the denial of costs associated with the lack of documentation originally made under Version 0 was simply repeated in Version 1, it was not a new determination.  Therefore, Version 1 did not trigger new appeal rights for the determination made under Version 0.  Consequently, the Applicant’s appeal rights lapsed once the timeframe to appeal Version 0’s determination expired.

 

FEMA’s Regulatory Implementation of Stafford Act § 423

 

The Applicant maintains that 44 C.F.R. § 206.206(c)(2) conflicts with the intent of Section 423 of the Stafford Act; however, this is not the case.  The term “applicant” is broad and is inclusive of both grantees and subgrantees; therefore, the 60 day timeframe applies to both applicants and grantees separately.[20]  A contrary interpretation would absolve grantees from complying with a basic grant management function that they receive funding to complete and legally agreed to perform by signing the FEMA State Agreement.[21]  Moreover, inclusion of grantees within the appeal process is necessary because grantees, as the recipient of the grant award, are legally accountable for use of the funds.[22]  As grantees are responsible for any resulting financial outcome of an award, excluding them from the appeal process would not comport with the Stafford Act.[23]  Therefore, 44 C.F.R. does not abrogate an applicant’s statutory right of appeal.

 

 Notice and Comment Requirements - Stafford Act § 325(a)

 

Section 325(a) of the Stafford Act provides for a notice and comment period for any new or modified policy that governs implementation of the PA program and could result in a “significant reduction of assistance under the program.”[24]  Furthermore, if FEMA implements such a policy, FEMA cannot apply it retroactively, i.e., to disasters that took place before the date that the policy takes effect.[25] 

 

The Applicant argues that FEMA has instituted a new policy in denying appeals solely on a grantee’s failure to transmit appeals within the requisite 60 day timeframe.  FEMA disagrees, however, with the Applicant’s characterization.  FEMA has not implemented a new policy; FEMA has enforced submission timeframes that apply to both the applicant and the grantee for years.  Moreover, nearly thirty years ago, a notice and comment period was provided for the very section at issue, 44 C.F.R. § 206.206, and neither the regulations nor statute governing the appeal period have changed since that time.[26]  Consequently, the Applicant’s assertion that FEMA has instituted a new policy, without a notice and comment period, and applied it retroactively, is without merit.   

 

Support Documentation

 

When FEMA is considering denying a first appeal in whole or in part, the RA must issue the applicant a Final RFI with an attached administrative record index.[27]  The Final RFI must explain the basis for the likely partial or complete denial of the appeal, request that the applicant provide any additional information to support its appeal, and state that the administrative record will close after the RA issues the first appeal decision.[28]

 

The Applicant asserts that FEMA has not properly maintained the administrative record, resulting in prejudice to the Applicant.  However, the administrative record index affixed to, and transmitted with, the Final RFI, included eighteen entries describing the documentation contained in the administrative record.  The second entry in the index listed the Disaster Assistance Regional Tracking System Report, supporting the June 19, 2014 date of receipt referenced in the first appeal decision. 

 

Moreover, in contrast to the Applicant’s assertion that FEMA left out documentation accompanying the December 29, 2014 appeal letter, the final administrative record index demonstrates FEMA added all documentation the Applicant attached to its first appeal letters, to the administrative record.  Additionally, with the exception of the first appeal decision, all documentation attached to the Applicant’s second appeal letter was previously submitted and included in the administrative record.  Therefore, FEMA notes it considered all the documentation previously submitted during the pendency of the first appeal in its review of this second appeal.  Consequently, the Applicant’s assertions are without merit and lack support.  

 

Lastly, the Applicant requests FEMA provide it with the actual documentation listed in the administrative record index.  However, the Applicant had the opportunity to request the documentation on first appeal, and did not do so, even though the Final RFI informed the Applicant of the documents contained within the administrative record and that it would close upon issuance of the first appeal decision.  Accordingly, the administrative record closed with the issuance of the first appeal decision and remains closed for the adjudication of the second appeal.

 

Conclusion

 

The Applicant’s first appeal is untimely because the Grantee submitted the appeal beyond the 60 day timeframe required by 44 C.F.R. § 206.206(c)(2).  Accordingly, the Applicant’s second appeal is denied.            

 

[1] Though the letter is dated March 1, 2010, the Applicant acknowledges in its second appeal that the year is a mistake, and the letter was actually transmitted on March 1, 2011.  Letter from Rep., Office of Enterprise, Risk Mgmt., City of Atlanta, and Counsel, City of Atlanta, to Assistant Adm’r – Recovery, FEMA, at 4, footnote 8 (Mar. 1, 2018) [hereinafter Applicant’s Second Appeal].

[2] Letter from Rep., City of Atlanta, to Reg’l Adm’r, FEMA Region IV, through Dir., Ga. Emergency Mgmt. Agency, at 1 (Apr. 28, 2011).  As support, the Applicant provided seven exhibits, which included the (1) PW 1281 (Version 0), (2) PW 1281 (Version 1), as transmitted by the Grantee, (3) Affidvait of the Interim Dep. Comm’r of the Bureau of Wastewater Treatment and Collection of the City of Atlanta, (4) photographs of the Facility, (5) Affidavit of the Sen. Process Control Technician, (6) National Pollutant Discharge Elimination System Permit, and (7) City Reports to Environmental Protection Div. of Ga. Dep’t of Nat’l Resources.

[3] The Applicant included four attachments with this appeal: (1) the Grantee’s October 27, 2014 letter transmitting PW 1281 (Version 1) and the P.2 for that PW to the Applicant, (2) the Applicant’s April 28, 2011 first appeal with the seven previously submitted exhibits, (3) the Grantee’s letter forwarding the first appeal, dated August 17, 2011, and (4) the Applicant’s letter dated December 1, 2014, with supporting documentation.  The list of attachments accompanying the December 29, 2014 appeal letter erroneously labeled the Grantee’s letter forwarding the first appeal as August 27, 2011.  Moreover, the list of attachments included an entry for “Attachment 4” listed as reserved.  FEMA notes, however, that Applicant did not submit any letter dated August 27, 2011, nor any documentation pertaining to “Attachment 4.”  

[4] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) (2008) (requiring the grantee to review and forward an applicant’s appeal, together with a written recommendation, to the FEMA RA within 60 days of receipt).

[5] Letter from Rep., Office of Risk Mgmt., City of Atlanta, and Special Counsel, City of Atlanta, to Dir., Recovery Div., FEMA Region IV, and Dir., Ga. Emergency Mgmt. and Homeland Sec. Agency, at 2 (Sept. 15, 2017) (citing The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988, Pub. L. No. 93-288, § 423(a), 42 U.S.C. § 5189a(a) (2006), titled “Right of Appeal,” outlining the 60 day timeframe to file an appeal).

[6] Id. at 3 (emphasis in original document).

[7] Id. at 3-4 (citing Stafford Act § 423(c) (“The President shall issue rules which provide for the fair and impartial consideration of appeals. . . .”)).

[8] Id. at 5-6 (citing Stafford Act § 325, which provides for a notice and comment period for any new or modified policy that governs implementation of the PA program and that could result in significant reduction of assistance under the program, and additionally prohibiting retroactive application of such a policy).

[9] Id. at 7 (citing Stafford Act § 423(a), which states an applicant may appeal “any decision regarding eligibility for, from, or amount of assistance. . .” and 44 C.F.R. § 206.206, stating an applicant may appeal “any determination previously made related to an application for or the prevision of Federal assistance. . .”).

[10] In its second appeal letter, the Applicant requests approval of total actual costs in the amount of $1,274,950,54.  However, as this amount includes the $200.61 that remains obligated for direct administrative costs, FEMA notes that the additional requested funding on appeal actually totals $1,274,749.93.  Furthermore, the Applicant requests a meeting with FEMA Headquarters to expedite review of this second appeal and address any specific questions, so that the issues may be resolved in a timely manner.  FEMA denied this request during the pendency of the second appeal.  Letter from Dir., Public Assistance Div., FEMA, to Dir., Ga. Emergency Mgmt. and Homeland Sec. Agency (Apr. 25, 2018).

[11] Applicant’s Second Appeal, at 17 (citing Stafford Act § 423(c)).

[12] Id. at 10 (citing Public Assistance Guide (PA Guide), FEMA 322, at 86 (2001), which provides, “The State will review the appeal documentation and request additional information if necessary.  The State will then prepare a written recommendation on the merits of the appeal and forward that recommendation to FEMA within 60 days of its receipt of the appeal letter or receipt of additional information that it had requested.”).  The PA Guide in effect at the time the disaster was actually a 2007 version.  However, this is a difference without distinction as the language pertaining to this issue that is present in the 2007 version, is almost identical to the language contained in the version cited to by the Applicant. 

[13] 44 C.F.R. § 206.206(c)(2).

[14] FEMA Second Appeal Analysis, Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4 (Aug. 5, 2016).

[15] Id. at 3.

[16] See e.g., FEMA Second Appeal Analysis, Town of Windermere, FEMA-1561-DR-FL, at 4 (Apr. 2, 2018) (finding that the first appeal was untimely because the Grantee submitted the Applicant’s appeal after the Grantee’s regulatory 60 day period had expired).

[17] Public Assistance Guide, FEMA 322, at 113 (June 2007).

[18] See id. (“The State need not endorse the appeal position but must forward all appeals it receives.”); see also FEMA Second Appeal Analysis, City of Scotts Valley, FEMA-1203-DR-CA, at 3 (June 10, 2005) (the Grantee submitted the appeal to FEMA within the 60 day regulatory timeline and set forth its recommendation for all but one disputed item, deferring to make a recommendation concerning a specific cost pending receipt of additional information).

[19] FEMA Second Appeal Analysis, Tex. Dep’t of Aging and Disability Servs., FEMA-1791-DR-TX, at 5 (Feb. 27, 2018); FEMA Second Appeal Analysis, Broward Cty., FEMA-1609-DR-FL, at 4-5 (Feb. 23, 2018) (“[E]ven if the Grantee had provided such an [appeal] extension, it would not have had the authorization under the Stafford Act, regulations, or FEMA policy to do so.”); FEMA Second Appeal Analysis, Roman Catholic Archdiocese of Miami, FEMA-1602-DR-FL, at 3 (Jan. 3, 2018).

[20] Disaster Assistance, 55 Fed. Reg. 2,297 (Jan. 23, 1990) (“. . . the 60 day limit applies separately to the actions of the subgrantee and the grantee, and not to the combined actions of those two parties”).

[21] 44 C.F.R. §§ 206.32(d), 206.44. 

[22] Id. § 206.201(e) (defining “grantee” as “the government to which a grant is awarded which is accountable for the use of the funds provided . . . For purposes of this regulation, except as noted in § 206.202, the State is the grantee”); id. § 206.202 (describing grantee application procedures; the grantee is “responsible for processing subgrants to applicants . . .”).

[23] Stafford Act § 423(c) (“The President shall issue rules which provide for the fair and impartial consideration of appeals under this section.”).

[24] Id. § 325(a)(1).

[25] Id. § 325(a)(2).

[26] See Disaster Assistance, 55 Fed. Reg. 2,297 (Jan. 23, 1990).

[27] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 4, at 13 (Mar. 29, 2016) (in effect when FEMA issued the Final RFI).

[28] Id.