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Second Appeal Brief
PA ID# 099-99099-00; Palm Beach County
PW ID# (PW) 2622 ; Support Documentation, Appeal Timeliness
Conclusion: FEMA afforded Palm Beach County (Applicant) the opportunity to submit pertinent documentation in accordance with FEMA policy. The first appeal was submitted beyond the timeframe allowed by Federal regulation, and the Applicant’s appeal rights were therefore exhausted. Consequently, the Stafford Act § 705(c) prohibition against recoupment of funds does not apply.
From October 23 to November 18, 2005, Hurricane Wilma threatened the Applicant’s Water Utility. FEMA prepared Project Worksheet (PW) 2622 to document emergency protective measures required to maintain water service; among other items, the scope of work approved force account (FA) labor and equipment costs totaling $2,180,751.54. A subsequent audit of the Applicant’s projects recommended FEMA recover the FA costs, as the Applicant failed to retain supporting documentation. FEMA deobligated $2,180,751.54 in Public Assistance (PA) under Version 5 of the PW. The Applicant received notice of the deobligation on October 24, 2014. The Applicant submitted a “Notice of Appeal” letter to the Florida Division of Emergency Management (Grantee) dated December 23, 2014, and an “Amended Notice of Appeal” letter dated March 24, 2015. The Applicant requested FEMA reinstate funding and argued the Stafford Act § 705(c) prohibited the deobligation of funding. The Grantee transmitted the March 24, 2015 appeal to FEMA in a letter dated April 16, 2015. FEMA issued a Final Request for Information (RFI) but did not receive a response prior to closing the administrative record. The FEMA Region IV Regional Administrator (RA) denied the appeal as untimely on October 26, 2017. In the second appeal, the Applicant states it was deprived of the opportunity to submit pertinent documentation, as it never received the Final RFI. The Applicant asserts its December 23, 2014 “Notice of Appeal” letter, which was not in the record, demonstrates the first appeal was timely submitted, and reiterates its arguments regarding § 705(c).
Authorities and Second Appeals
- Stafford Act §§ 423(a), 705(c).
- 44 C.F.R. § 206.206(c).
- FP 205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 4.
- Public Assistance Program Appeal Procedures, Version 4, at 13-14.
- Nobles Cooperative Electric, FEMA-4112-DR-MN, at 2-3.
- Roman Catholic Archdiocese of Miami, FEMA-1602-DR-FL, at 1, 3.
- City of Pensacola, FEMA-1551-DR-FL, at 5.
- Broward Cty., FEMA-1609-DR-FL, at 4.
- Broward Cty. Sch. Bd. of Fla., FEMA-1609-DR-FL, at 3.
- Port of Galveston, FEMA-1791-DR-TX, at 6-7.
- The Recovery Directorate Manual, Public Assistance Program Appeal Procedures, provides that when FEMA is considering denying a first appeal, the RA must issue a Final RFI.
- Information in the record demonstrates the Applicant received the Final RFI.
- FEMA afforded the Applicant the opportunity to submit pertinent documentation in accordance with policy.
- Stafford Act § 423(a) allows an applicant to appeal any PA determination within 60 days of receiving notice of the appealable action. Similar time constraints apply to the Grantee.
- on the administrative record, the RA properly determined the Applicant submitted the first appeal beyond the 60-day timeframe. Moreover, had the Applicant submitted a timely first appeal, as it asserts, the second appeal would still be denied, as the Grantee’s first appeal transmittal was then untimely.
- Applicant’s appeal rights lapsed.
- Act § 705(c) bars FEMA from deobligating PA when certain criteria are met. However, FP 205-081-2 provides that the § 705(c) prohibition does not apply where appeal rights are exhausted and FEMA had made a final administrative decision.
- Applicant’s appeal rights lapsed, which resulted in the Version 5 deobligation becoming the final administrative decision.
Stafford Act § 705(c) is not applicable.