Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 000-UCORF08-00; New Jersey Transit
PW ID# RPA; Request for Public Assistance
From October 26 to November 8, 2012, Hurricane Sandy caused extensive damage to the State of New Jersey’s public transit infrastructure, including damage to a train washer at the Hoboken Terminal operated by New Jersey Transit (Applicant). In a January 2013 appropriations bill, Congress provided $10.9 billion for Hurricane Sandy relief to the Federal Transit Administration’s (FTA), Emergency Relief Program (ERP). Between 2013 and 2016, FTA allocated all of its Hurricane Sandy relief appropriations ($10.088 billion after reductions and transfers) in four installments to the Applicant, and other transit authorities. In this period, FEMA and FTA leadership made the discretionary policy determination, in coordination with the Office of Management and Budget (OMB), that FEMA would not supplement FTA’s ERP appropriation to address public transit disaster relief for Hurricane Sandy, given the size of this appropriation in relation to the local transit authorities’ estimated needs. As a part of this FTA appropriation, the Applicant received at least $444.8 million in recovery and restoration allocations, and $1.3 billion in resilience funds, with a Reprogramming Option to reallocate resilience funding toward recovery and restoration. However, the Applicant chose not to exercise this option. Despite the FTA appropriation, the Applicant claimed a $304 million funding shortfall for unmet recovery needs, and therefore requested that FEMA develop a project worksheet for $9,230,628.10 to fund the replacement of its damaged Hoboken train washer. FEMA denied the request because its Memorandum of Agreement (MOA) with FTA recognized FTA’s primary responsibility to assist transit systems affected by Sandy, Congress appropriated $10.9 billion to FTA specifically for Sandy relief, and FEMA had determined it would not supplement this appropriation with funding from its Disaster Relief Fund. The Applicant appealed claiming substantial unmet recovery needs that FEMA could legally fund. On May 15, 2018, FEMA denied the appeal. In its first appeal decision, the FEMA Region II Regional Administrator (RA) opined that FEMA was legally precluded from providing the requested funding due to FTA’s more specific authority to fund public transit disaster relief and because more than 90 percent of the Applicant’s recovery needs had already been met. The Applicant filed a second appeal disputing both that FTA had more specific authority that precluded FEMA assistance and that FTA had satisfied 90 percent of the Applicant’s needs. On August 13, 2018, the Region II RA rescinded his May 15, 2018 first appeal determination and re-issued a new first appeal determination. The RA once again denied the appeal, now under the revised rationale that FEMA and FTA leadership made the discretionary policy determination, in coordination with OMB, that FTA would be the sole source of restoration funds for the Applicant’s transit infrastructure. The Applicant filed a revised second appeal challenging FEMA’s policy rationale, discretionary authority, and failure to publish its policy determination prior to the Applicant’s appeal.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.220, 206.226.
- St. Tammany Parish, ex. Rel. Davis, 556 F.3d 307, 324 (5th Cir. 2009); Cal.-Nev. Methodist Homes v. Fed. Emergency Mgmt. Agency, 152 F. Supp. 2d 1202, 1207 (N.D. Cal. 2001).
- Neither the Stafford Act § 406, nor FEMA’s PA regulations for permanent work, require FEMA to approve any funding request. Instead, FEMA may provide funding for eligible work at its discretion.
- FEMA exercises discretionary authority not to fund any restoration for public transit infrastructure required as a result of Hurricane Sandy.
FEMA and FTA leadership made the discretionary policy determination, in coordination with OMB, that FTA would be the sole source of Hurricane Sandy-related restoration funds for transit infrastructure. Therefore, the Applicant’s appeal is denied.