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Appeal Procedures, Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1545/1561
ApplicantPalm Beach County
Appeal TypeSecond
PA ID#099-99099-00
PW ID#(PWs) 7907, 8107, and 5296
Date Signed2018-08-03T00:00:00

Conclusion: Palm Beach County (Applicant) submitted the first appeal in a timely manner, and additionally satisfied the requirements of the Stafford Act and 44 C.F.R. at issue.  FEMA grants the appeal and remands it to Region IV to adjudicate the substantive merits of the appeal.

 

Summary Paragraph

Between September 3 and November 17, 2004, Hurricanes Frances and Jeanne deposited a large volume of debris on the Applicant’s roadways and public property.  FEMA prepared Project Worksheets (PWs) 7907 and 8107 for Hurricane Frances, and PW 5296 for Hurricane Jeanne, to document debris removal work, and awarded Public Assistance (PA) funding.  A subsequent audit recommended FEMA recover $622,654.00 under the three PWs.  On September 9, 2013, the Applicant submitted an appeal of the audit recommendations to the Florida Department of Emergency Management (Grantee).  FEMA subsequently concurred with the audit recommendations, and deobligated PA funding from the PWs.  The Grantee notified the Applicant of the deobligations in November and December 2014, and the Applicant resubmitted the first appeal documentation on January 14, 2015.  The Grantee forwarded the appeal to FEMA on February 5, 2015.  In a Final Request for Information (RFI), FEMA requested information regarding the timeliness of the Grantee’s appeal transmittal; the Grantee responded, but stated it had no further documentation to provide.  On December 5, 2017, the FEMA Region IV Regional Administrator (RA) denied the appeal.  The RA determined the Applicant submitted the appeal in late 2013, and therefore the Grantee’s February 2015 transmittal was untimely.  The RA also determined the Applicant did not follow requirements of the Stafford Act and 44 C.F.R. when it submitted the appeal.  In a letter dated February 2, 2018, the Applicant appeals the RA’s determination, asserting it resubmitted the first appeal on January 14, 2015, and the appeal was therefore timely.

Authorities and Second Appeals

  • Stafford Act § 423(a).
  • 44 C.F.R. §§ 206.206(a), 206.206(c).
  • Public Assistance Program Appeal Procedures, Version 4, at 13.
  • Town of Windermere, FEMA-1561-DR-FL, at 3.

Headnotes

  • Per 44 C.F.R. § 206.206(c)(1), applicants must file appeals within 60 days of receipt of notice of the action that is being appealed.  A similar constraint applies to a grantee.
    • The Applicant demonstrated it resubmitted the appeal documentation on January 14, 2015, less than 60 days after receiving notice of the PW deobligations, and the Grantee forwarded the appeal to FEMA within 60 days of receipt.
    • The Applicant’s appeal was timely.
  • Per Stafford Act section 423(a), an applicant may appeal any decision regarding eligibility for PA grant funding.  Per 44 C.F.R. § 206.206(a), an appeal must contain documented justification specifying the disputed amount and the provisions with which FEMA’s decision was inconsistent.
    • The Applicant submitted the first appeal in response to FEMA’s deobligations, and referenced provisions from Federal regulation for specific costs.
    • The first appeal satisfied the statutory and regulatory requirements at issue.
  • 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 explaining the basis for the denial.
    • FEMA noted timeliness of the appeal as an issue of concern in the Final RFI, but erred in denying the appeal based on timeliness and appeal sufficiency.
    • However, as above, FEMA determines the first appeal satisfied the appeal sufficiency requirements at issue; therefore, the earlier error was harmless.

 

 

Appeal Letter

Wesley Maul

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, FL 32399-2100

 

Re: Second Appeal – Palm Beach County, PA ID 099-99099-00, FEMA-1545/1561-DR-FL,            Project Worksheets (PWs) 7907, 8107, and 5296 – Appeal Procedures, Appeal Timeliness

 

Dear Mr. Maul:

 

This is in response to a letter from your office dated March 20, 2018, which transmitted the referenced second appeal on behalf of Palm Beach County, Florida (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to uphold the deobligation of $622,654.00 in Public Assistance funding.

 

As explained in the enclosed analysis, I have determined that the Applicant filed the first appeal in a timely manner, in accordance with 44 C.F.R. § 206.206(c).  Moreover, the Applicant submitted the first appeal in response to an appealable eligibility decision per Stafford Act 423(a), and the appeal satisfied the format and content requirements of 44 C.F.R. § 206.206(a).  Accordingly, I am granting the appeal and remanding it to FEMA Region IV to address the substantive issues of the appeal and issue a new first appeal decision.

 

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

 

Sincerely,

 /S/

 

Jonathan Hoyes

Director

Public Assistance Division

 

Enclosure

 

cc: Gracia Szczech

      Regional Administrator

            FEMA Region IV      

Appeal Analysis

Background

 

From September 3 to October 8, 2004, heavy winds and rainfall from Hurricane Frances (DR-1545) caused widespread damage throughout Florida.  The Hurricane deposited an estimated 3,000,000 cubic yards (CY) of debris on roadways and public property in Palm Beach County (Applicant).  FEMA prepared Project Worksheet (PW) 7907 for contracted debris removal monitoring, and awarded $1,193,953.76 in actual costs for the project.  FEMA also prepared PW 8107 to document contract labor for tree stump removal on public rights-of-way, and awarded $1,062,995.00 in actual costs for the project.  Subsequently, from September 24 to November 7, 2004, Hurricane Jeanne (DR-1561) caused further damage, depositing an additional 3,000,000 CY of debris onto public property owned by the Applicant.  FEMA prepared PW 5296 for debris removal monitoring, and awarded $4,529,860 for the project.

 

The Department of Homeland Security Office of Inspector General (OIG) audited the Applicant’s projects for both disasters.  In audit reports dated July 10, 2013,[1] the OIG recommended FEMA recover previously awarded Public Assistance (PA) funding.[2]  OIG representatives met with the Applicant to review the audit report recommendations.[3]

 

First Appeal

 

In a letter to the Florida Division of Emergency Management (Grantee) dated September 9, 2013, the Applicant submitted an appeal of the OIG’s audit report recommendations for PWs 7907, 8107, and 5296.[4]  The Applicant disputed each of the recommendations, and included information and supporting documentation that it stated demonstrated eligibility of the costs at issue.

 

FEMA Region IV concurred with the OIG’s recommendations, and in August and September 2014 deobligated a total of $622,654.00 in PA funding across the three PWs.[5]  The Grantee notified the Applicant of the deobligations in November and December 2014, forwarding the Project Application Summaries (P.2) for each PW.[6]  Subsequently, the Applicant requested an update from the Grantee as to the status of its September 9, 2013 appeal.  In an email exchange on January 14, 2015, the Grantee stated it was unaware the appeal had been filed, but requested additional information and recommended the Applicant submit a new appeal letter.[7]  The Applicant resubmitted the September 9, 2013 appeal documentation.[8]  On February 5, 2015,[9] the Grantee forwarded the appeal to FEMA, expressing support and asserting the deobligations were improper, as each project met the criteria in section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988.[10]

 

FEMA issued a Final Request for Information (RFI)[11] that expressed concern the documentation in the administrative record did not demonstrate the first appeal had been filed within the 60-day timeframe allowed by Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c).[12]  Specifically, FEMA noted the Applicant’s first appeal was dated September 9, 2013, but the Grantee’s transmittal was dated more than 60 days later.  FEMA requested documentation demonstrating the Grantee submitted the appeal within the regulatory timeframe.  In its response to the Final RFI, the Grantee stated it did not have additional documentation that would support a timely filing, and reiterated its earlier argument regarding the applicability of section 705(c).[13]

 

On December 5, 2017, FEMA denied the appeal.[14]  FEMA determined the Applicant’s first appeal had been submitted to the Grantee in late 2013.[15]  Thus, the Grantee’s February 2015 transmittal was outside the 60-day regulatory timeframe, and the first appeal was untimely.  Additionally, FEMA determined the Applicant submitted the appeal in response to the OIG’s audit report recommendations, and noted deficiencies in the content of the appeal letter.[16]  Therefore, FEMA concluded the Applicant had not responded to an appealable decision, as required by section 423(a) of the Stafford Act,[17] and failed to follow the appeal content requirements in 44 C.F.R. § 206.206(a).[18]  Finally, FEMA determined that because the appeal was untimely, the Applicant’s appeal rights lapsed, and per FEMA policy[19] the section 705(c) prohibitions did not apply.

 

Second Appeal

 

In a letter dated February 2, 2018, the Applicant appeals the first appeal determination, and requests FEMA either remand the appeal for consideration of the substantive issues, or reinstate $622,654.00 in PA funding under PWs 7907, 8107, and 5296.[20]  The Applicant acknowledges it originally filed the appeal in response to the OIG’s audit report recommendations, but states it resubmitted the appeal on January 14, 2015 after receiving notice of FEMA’s deobligations.  The Applicant asserts its appeal was therefore timely.[21]  Finally, the Applicant reiterates the Grantee’s argument regarding the applicability of section 705(c) of the Stafford Act to its projects.

 

In a transmittal dated March 20, 2018, the Grantee expresses its support for the second appeal.[22]  The Grantee asserts the first appeal was submitted in a timely manner, as the Applicant intended the original submission of the September 9, 2013 letter to be a rebuttal of the OIG’s audit report recommendations, not as an administrative appeal.  Moreover, even if the letter were viewed as a first appeal request when originally filed, the Grantee maintains that the attempt was “futile” as the PW deobligations had not yet occurred, and FEMA’s eligibility determinations were not ripe for appeal.[23]  The Grantee reiterates its earlier arguments regarding the applicability of section 705(c).

 

 

 

 

 

Discussion

 

Appeal Timeliness

 

Applicants must file appeals within 60 days after receipt of a notice of the action that is being appealed.[24]  Within 60 days of receiving an applicant’s appeal, a grantee will review and forward the appeal to FEMA with a written recommendation.[25]  If either the applicant or the grantee fails to meet these deadlines, the appeal is untimely and the applicant’s appeal rights lapse.[26]

 

Regarding the Applicant’s initial filing on September 9, 2013, FEMA determined on first appeal that: (1) the filing was in fact a response to the OIG’s audit report recommendations;[27] (2) the deobligation of PA funding under PWs 7907, 8107, and 5296 (i.e., the appealable action) had not yet occurred by that date;[28] and, therefore, (3) the eligibility decisions underlying the deobligations were not ripe for adjudication through the PA appeal process.[29]  FEMA affirms these determinations on second appeal.

 

However, the Applicant asserts it resubmitted the first appeal after receiving notice of FEMA’s deobligations in November and December 2014.  Close scrutiny of the Applicant’s email exchange with the Grantee substantiates the Applicant’s assertion.  The emails demonstrate the Applicant resubmitted the September 2013 appeal documentation to the Grantee a second time, on January 14, 2015, presenting it as an appeal of FEMA’s PA funding deobligations.[30]  Furthermore, FEMA could find no provision of statute, regulation, or policy, nor any prior second appeal decisions, which would prohibit or otherwise limit an applicant from filing a first appeal using documents submitted prior to the appealable action occurring, but that address the same substantive matter.

 

Therefore, FEMA agrees with the Applicant that January 14, 2015 was the date on which the Applicant filed its first appeal of the PA funding deobligations at issue.  Accordingly, FEMA finds the first appeal was submitted in a timely manner.[31]

 

 

Sufficiency of the First Appeal

 

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.”  An appeal must contain documented justification supporting the applicant’s position, specifying the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the applicant believes the initial action was inconsistent.[32]

 

Seeing that FEMA Region IV concurred and deobligated in accordance with the OIG’s recommendations, the Applicant re-filed the September 9, 2013 appeal letter and analysis addressing the same substantive matters on January 14, 2015.  The appeal still bore the earlier date, and the Applicant did not update or modify the language therein, which contained specific references to the OIG’s audit report recommendations.  Nevertheless, as noted above, the email exchange between the Applicant and Grantee demonstrates the Applicant submitted the documents as an appeal of FEMA’s funding deobligations, and the Grantee clarified the subject of the appeal explicitly in the first appeal transmittal letter.[33] 

 

Additionally, the Applicant’s first appeal analysis of the costs on appeal contained arguments, and referenced documentation in the administrative record, which it asserted justifies its claim for the PA funding at issue.  Moreover, in several places in the analysis, the Applicant also referenced provisions in Federal regulation upon which it bases its claim for specific costs.[34]  Finally, in the first appeal transmittal, the Grantee asserted the deobligations were improper based on the section 705(c) prohibition against recoupment of funding.

 

Therefore, FEMA determines the Applicant submitted the first appeal in response to an appealable eligibility decision per Stafford Act section 423(a), and the appeal satisfied the format and content requirements of 44 C.F.R. § 206.206(a).

 

Support Documentation

 

When FEMA is considering denying a first appeal in whole or in part, the Regional Administrator (RA) must issue the applicant a Final RFI with an attached administrative record index.[35]  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.[36]

 

In the Final RFI, FEMA noted timeliness of the first appeal as the only issue of concern.  However, in the first appeal decision, FEMA based the denial of the appeal on two issues: timeliness of the Grantee’s transmittal, and sufficiency of the Applicant’s September 9, 2013 appeal submission.  Thus, FEMA erred by not providing the Applicant or Grantee an opportunity to address the sufficiency of the first appeal before issuing the first appeal decision.  However, as noted above, on second appeal FEMA determines the Applicant in fact met the statutory and regulatory requirements for the format and content of the appeal submission.  This determination renders any deficiency with the Final RFI moot.  FEMA’s error in this instance was harmless, and remanding the appeal to Region IV to issue a new Final RFI addressing the sufficiency of the first appeal is unnecessary.[37]

 

Conclusion

 

The Applicant submitted its first appeal in a timely manner and in response to an appealable eligibility decision.  Moreover, the appeal satisfied the format and content requirements found in Federal regulation.  Therefore, the second appeal is granted, and remanded to Region IV to address the substantive issues on appeal with a new first appeal decision. 

 

[1] U.S. Dep’t of Homeland Sec. Office of Inspector Gen., DA-13-22, FEMA Should Recover $1.6 Million of Public Assistance Grant Funds Awarded to Palm Beach County, Florida – Hurricane Frances (July 10, 2013) [hereinafter DA-13-22]; U.S. Dep’t of Homeland Sec. Office of Inspector Gen., DA-13-24, FEMA Should Recover $951,221 of Public Assistance Grant Funds Awarded to Palm Beach County, Florida – Hurricane Jeanne (July 10, 2013) [hereinafter DA-13-24]

[2] DA-13-22 and DA-13-24 questioned costs from various projects.  Relevant to the second appeal, the OIG recommended FEMA recover: (1) $141,131.00 from PW 7907, for costs lacking substantiating documentation or that were ineligible under Hurricane Frances; (2) $187,400.00 from PW 8107, for costs lacking substantiating documentation and for work that was not the Applicant’s legal responsibility to perform; and (3) $294,123.00 from PW 5296, for costs lacking substantiating documentation.

[3] DA-13-22, at 10; DA-13-24, at 7.

[4] Letter from Dir. of Fin. Servs., Solid Waste Auth., Palm Beach Cty., to Interim Dep. Bureau Chief, Recovery, Fla. Div. of Emergency Mgmt. (FDEM), at 1 (Sept. 9, 2013) [hereinafter Applicant First Appeal].  The Applicant erroneously stated the amount on appeal was $637,294.00.  The Grantee later corrected this to $622,654.00 in the first appeal transmittal.

[5] Project Worksheet 7907, Palm Beach Cty., Version 2 (Sept. 24, 2014); Project Worksheet 8107, Palm Beach Cty., Version 2 (Aug. 25, 2014); Project Worksheet 5296, Palm Beach Cty., Version 3 (Sept. 24, 2014).

[6] Letter from State Pub. Assistance Officer, FDEM, to Chief Fin. Officer, Palm Beach Cty. (Nov. 5, 2014) (forwarding the P.2 for PW 5296); Letter from State Pub. Assistance Officer, FDEM, to Chief Fin. Officer, Palm Beach Cty. (Dec. 2, 2014) (forwarding the P.2 for PW 8107); and Letter from State Pub. Assistance Officer, FDEM, to Chief Fin. Officer, Palm Beach Cty. (Dec. 12, 2014) (forwarding the P.2 for PW 7907).  In each case the Grantee advised the Applicant of its appeal rights and appeal procedural requirements.

[7] Email from Appeals Officer, Bureau of Recovery, FDEM, to Budget Mgr., Solid Waste Auth., Palm Beach Cty. (Jan. 14, 2015, 1444 EST).

[8] Email from Budget Mgr., Solid Waste Auth., Palm Beach Cty., to FDEM (Jan. 14, 2015, 1410 EST) [hereinafter Applicant Email Jan. 14, 2015, 1410 EST] (resubmitting the Sept. 9, 2013 appeal cover letter); Email from Budget Mgr., Solid Waste Auth., Palm Beach Cty., to Appeals Officer, Bureau of Recovery, FDEM (Jan. 14, 2015, 1542 EST) (resubmitting a three-page analysis of the specific costs on appeal).

[9] Letter from Governor’s Authorized Representative, FDEM, to Acting Reg’l Adm’r, FEMA Region IV (Feb. 6, 2015) [hereinafter Grantee First Appeal].  Though the Grantee dated its first appeal Feb. 6, 2015, it forwarded the letter to FEMA Region IV a day earlier, on Feb. 5, 2015; see Email from Representative, FDEM, to FEMA Region IV (Feb. 5, 2015, 1617 EST).

[10] Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988 § 705(c), 42 U.S.C. § 5205(c) (2003) (prohibiting FEMA from deobligating previously awarded funding from a State or local government if: (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).

[11] Letter from Dir., Recovery Div., FEMA Region IV, to Dir., FDEM and Dir. of Fin. Servs., Solid Waste Auth., Palm Beach Cty. (July 18, 2017).

[12] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) (2003) (requiring a grantee to review and forward an appeal from an applicant, along with a written recommendation, to the FEMA Regional Administrator within 60 days of receipt).

[13] Letter from Dir., FDEM, to Dir., Recovery Div., FEMA Region IV (Aug. 28, 2017).

[14] Letter from Reg’l Adm’r, FEMA Region IV, to Interim Dir., FDEM and Fiscal Mgr. II, Facilities Dev. Dep’t, Palm Beach Cty. (Dec. 5, 2017).

[15] FEMA First Appeal Analysis, Palm Beach Cty., FEMA-1545/1561-DR-FL, at 4 (Dec. 5, 2017) (“although it is unclear when the Grantee actually received the submission, the Grantee later acknowledged the 2013 filing in its January 14, 2015, email”).

[16] Id. at 5 (“the letter did not reference specific legal provisions, regulations, or policies with which an action taken by FEMA was inconsistent”).

[17] Stafford Act § 423(a) (providing 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”).

[18] 44 C.F.R. § 206.206(a) (providing that an appeal “shall contain documented justification supporting the appellant’s position, specifying the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent”).

[19] Recovery Policy FP 205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 2 (Mar. 31, 2016) (providing that the section 705(c) prohibition against recoupment of funds does not apply to PWs where appeal rights are exhausted and FEMA has made a final administrative decision).

[20] Letter from Chief Fin. Officer, Solid Waste Auth., Palm Beach Cty., to Reg’l Adm’r, FEMA Region IV (Feb. 2, 2018).

[21] Pertaining to the assertion that the first appeal was submitted in a timely manner, the Applicant states it did not receive notice of the PW 5296 deobligation until Nov. 18, 2014, thirteen days after the date of the Grantee’s letter forwarding the P.2 report for that PW; see id. at 4 (stating “[o]n November 18, 2014, the [Applicant] received notice that $294,123 of funds for PW 5296 had been deobligated”).

[22] Letter from Dir., FDEM, to Assistant Adm’r, Recovery, FEMA (Mar. 20, 2018).

[23] Id. at 3.

[24] 44 C.F.R. § 206.206(c)(1).

[25] Id. at § 206.206(c)(2).

[26] FEMA Second Appeal Analysis, Town of Windermere, FEMA-1561-DR-FL, at 3 (Apr. 2, 2018).

[27] Palm Beach Cty., FEMA-1545/1561-DR-FL, at 5 (determining the Applicant’s “dispute was specific to recommendations made in the … OIG Audit Reports” (emphasis original)).

[28] Id. (stating “[t]he PWs that deobligated the amounts in dispute were not obligated until … almost one year after the [Applicant’s initial filing] was submitted to the Grantee”).

[29] Id. (determining “the submission of an appeal prior to a decision by FEMA presents issues that are not ‘ripe’ for adjudication”).

[30] Applicant Email Jan. 14, 2015, 1410 EST (stating “the Solid Waste Authority of Palm Beach County disagrees with FEMA determination [sic] with both PW(s)”).  The Applicant’s email referred to the appeal of PWs 7907 and 8107 only; nevertheless, the documentation it attached to the email appealed costs from all three PWs.

[31] FEMA uses the following dates and calculations in determining timeliness of the Applicant’s Jan. 14, 2015 first appeal filing to the Grantee: (1) for PW 7907, the appeal was submitted 33 days after the Grantee’s notification letter dated December 12, 2014; (2) for PW 8107, the appeal was submitted 43 days after the Grantee’s notification letter dated December 2, 2014; and (3) for PW 5296, the appeal was submitted 57 days after the Applicant received notice of the deobligation on November 18, 2014.  Additionally, the Grantee forwarded the appeal on Feb. 5, 2015, 22 days after receiving it from the Applicant.

[32] 44 C.F.R. § 206.206(a).

[33] Grantee First Appeal, at 1 (stating “[t]he Florida Division of Emergency Management … is in possession of a letter indicating Palm Beach County’s … desire to appeal FEMA’s determination of eligible funds for the above mentioned PW [sic],” and listing the disasters, PWs, and monetary amounts at issue).

[34] E.g., Applicant First Appeal, at 2 (citing 44 C.F.R. § 206.205(b) in relation to the Applicant’s claim for a disputed cost of $134,891.00 under PW 7907).

[35] Recovery Directorate Manual, Pub. Assistance Program Appeals Procedures, Version 4, at 13 (Mar. 29, 2016).

[36] Id.

[37] Contra, e.g., FEMA Second Appeal Analysis, Palm Beach Cty., FEMA-1545-DR-FL (Feb. 9, 2018) (remanding the appeal for issuance of a new Final RFI following a similar procedural deficiency on first appeal).

Last updated May 28, 2020