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Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1679
ApplicantLake County
Appeal TypeSecond
PA ID#069-99069-00
PW ID#(PW) 48
Date Signed2018-07-24T00:00:00

Conclusion: Lake County (Applicant) submitted its first appeal beyond the 60-day regulatory timeframe stipulated by 44 C.F.R. § 206.206(c)(1).  Accordingly, the appeal is denied as untimely.

 

Summary Paragraph

From February 1–2, 2007, severe storms and tornadoes scattered debris throughout Lake County.  FEMA prepared PW 48 to document the Applicant’s debris removal work initially estimated at $2,252,345.50.  The Florida Division of Emergency Management (Grantee) requested closeout for PW 48 and reimbursement for a cost overrun of $175,051.17.  FEMA denied the cost overrun request in Version 1 after determining that the Applicant’s invoices contained a duplication of benefits.  On October 28, 2014, the Grantee uploaded a letter to the Applicant on FloridaPA.org with a Project Application Summary Package (P.2) reflecting FEMA’s determination in Version 1.  On January 26, 2015, the Grantee uploaded another letter to the Applicant and the P.2, which were identical to the documents uploaded on October 28, 2014, and sent an email to the Applicant advising it to log into FloridaPA.org to download the P.2 reflecting FEMA’s obligation of PW 48, Version 1.  During a telephone call with the Grantee on January 20, 2016, the Applicant inquired about the status of PW 48 and explained that it had not received FEMA’s determination regarding its cost overrun request.  The Applicant received notice of FEMA’s determination in Version 1 from the Grantee on January 29, 2016.  The Applicant appealed FEMA’s denial of its $175,051.17 cost overrun request.  The Grantee supported the appeal, and confirmed the Applicant’s claim that it did not receive notice of FEMA’s determination until January 2016.  The Regional Administrator denied the appeal as untimely without considering its substantive merits after determining the 60-day regulatory timeframe to appeal began on October 28, 2014, when the Grantee uploaded the P.2 to FloridaPA.org.  On second appeal, the Applicant argues the appeal should be considered on its merits because FEMA waived the regulatory time limits for appeals when it failed to meet its own 90-day regulatory deadline in issuing the Final RFI and the first appeal decision.  The Applicant also asserts that FEMA should approve its $175,051.17 overrun because it demonstrated that the overrun did not include a duplication of benefits on first appeal.

 

Authorities

  • Stafford Act § 423.
  • 44 C.F.R. § 206.206(c).
     
    Headnotes
  • Stafford Act § 423 and 44 C.F.R. § 206.206(c)(1) provide that an applicant’s appeal of an eligibility determination must be filed within 60 days after the date on which the applicant is notified of the determination.
    • The Applicant submitted its first appeal beyond the 60-day regulatory timeframe because the Grantee sent an email to the Applicant on January 26, 2015, apprising the Applicant of FEMA’s determination and its appeal rights.  Accordingly, the appeal is denied as untimely.

 

Appeal Letter

Mr. Wesley Maul

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

 

Re:  Second Appeal – Lake County, PA ID 069-99069-00, FEMA-1679-DR-FL, Project Worksheet (PW) 48 – Appeal Timeliness

 

 

Dear Mr. Maul:

 

This is in response to a letter from your office dated December 22, 2017, which transmitted the referenced second appeal on behalf of Lake County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $175,051.17 based on a finding the first appeal was untimely.

 

As explained in the enclosed analysis, I have determined that the Applicant’s March 1, 2016  first appeal was filed beyond the 60-day regulatory timeframe stipulated by 44 C.F.R. § 206.206(c)(1) because your office notified the Applicant of FEMA’s determination on January 26, 2015.  Accordingly, I am denying the 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/

 

                                                                        Jonathan Hoyes

                                                                        Director

                                                                        Public Assistance Division                

 

 

Enclosure

 

cc: Gracia Szczech 

      Regional Administrator

      FEMA Region IV

Appeal Analysis

Background

 

From February 1–2, 2007, severe storms and tornadoes scattered debris on roadways, rights-of-way, and private property throughout Lake County (Applicant).  FEMA prepared Project Worksheet (PW) 48 to document the Applicant’s debris removal work initially estimated at $2,252,345.50.  The Florida Division of Emergency Management (Grantee) sent its Final Inspection Report for PW 48 and a closeout request letter to FEMA dated July 18, 2014, requesting reimbursement for a cost overrun of $175,051.17.  In PW 48, Version 1, FEMA denied the $175,051.17 cost overrun request on grounds that the Applicant’s invoices contained a duplication of benefits.[1] 

 

On October 28, 2014, the Grantee uploaded a Project Application Summary Package (P.2) reflecting FEMA’s determination in Version 1 and a draft determination letter informing the Applicant of its appeal rights[2] to FloridaPA.org.[3]  On January 26, 2015, the Grantee uploaded the P.2 with a signed determination letter to FloridaPA.org,[4] and sent an email with the signed determination letter attached advising the Applicant to log into FloridaPA.org to download the P.2 reflecting FEMA’s obligation of PW 48, Version 1.[5]  According to the Grantee, the Applicant inquired about the status of PW 48 during a telephone call on January 20, 2016, and explained that it had not received FEMA’s determination regarding its cost overrun request.[6]  On January 29, 2016, the Grantee sent notice of FEMA’s determination in Version 1 to the Applicant.[7]   

 

First Appeal

 

In a letter dated March 1, 2016, the Applicant appealed FEMA’s denial of the $175,051.17 cost overrun.  The Applicant argued that the cost overrun did not include duplicate benefits because the Grantee excluded all costs related to other PWs and Federal Highway Administration roads during final reconciliation.  The Grantee transmitted the appeal to FEMA Region IV with a recommendation letter dated March 29, 2016.  

 

On February 14, 2017, FEMA issued a Final Request for Information (RFI) to advise the Applicant the appeal would likely be denied due to a lack of documentation demonstrating it submitted its appeal within the 60-day regulatory timeframe, and to give the Applicant a final opportunity to provide information supportive of its appeal.  FEMA explained that the Applicant’s March 1, 2016 appeal would likely be denied as untimely because it was notified of FEMA’s determination through the Grantee’s letter dated January 5, 2015,[8] which made the deadline to file the appeal March 6, 2015.

 

The Applicant responded in a letter dated February 23, 2017, explaining that it learned it was notified of FEMA’s determination on January 26, 2015, and was advised on January 29, 2016, that it would need to appeal that determination within 60 days.[9]  The Applicant also stated that it submitted its appeal through FloridaPA.org on March 2, 2016, and the Grantee confirmed receipt of the appeal on March 15, 2016.  The Grantee transmitted the Final RFI response with a recommendation letter dated March 13, 2017, stating that notification was sent by FloridaPA.org on January 26, 2015, and by email on January 26, 2016, upon being advised by the Applicant that it did not receive any notification of the determination.  Additionally, the Grantee explained that the delayed transmittal of the January 26, 2015 notification was due to staff turnover and ongoing technical malfunctions in FloridaPA.org’s notification system.[10] 

 

On October 12, 2017, FEMA denied the appeal as untimely without addressing the substantive merits.  The FEMA Region IV Regional Administrator (RA) concluded the Applicant’s March 1, 2016 appeal was submitted beyond the 60-day regulatory timeframe because it was notified of FEMA’s determination in Version 1 through the Grantee’s letter dated October 27, 2014, and by the Grantee’s October 28, 2014 upload of the project’s P.2 to FloridaPA.org.

 

Second Appeal

The Applicant appeals the RA’s decision in a letter dated December 11, 2017, requesting that FEMA consider the appeal on its merits and approve the project’s cost overrun of $175,051.17.[11]  The Applicant argues that the appeal should be considered on its merits because FEMA waived the regulatory time limits when it failed to meet its own 90-day regulatory deadline in issuing the Final RFI and the first appeal decision.  It also states that the Grantee’s January 26, 2015 notification email “was mistakenly identified as having been sent on January 26, 2016 in the first appeal”[12]  Lastly, the Applicant asserts that FEMA should approve its $175,051.17 overrun because its first appeal demonstrated that the overrun amount did not include duplicate benefits.  The Grantee transmitted the Applicant’s second appeal to FEMA with an attached recommendation letter dated December 22, 2017.[13]  In its transmittal letter, the Grantee states that it has not identified any technical issues in FloridaPA.org during the time the January 26, 2015 email notification was sent.[14] 

 

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 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.”[15]  Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206 implements that provision, and establishes the format and content requirements for appeals.[16] 

On second appeal, the Applicant does not argue that its first appeal was timely.  Moreover, the Applicant’s second appeal concedes that the Grantee sent notice of FEMA’s determination in an email to the Applicant dated January 26, 2015, and includes a copy of that email with the determination letter attached.[17]  Therefore, FEMA finds the Applicant did not file its first appeal within the 60-day timeframe as required by 44 C.F.R. § 206.206(c)(1) because the Applicant was notified of the appealable action on January 26, 2015, and filed its first appeal more than one year later on March 1, 2016.[18]

 

Conclusion

 The administrative record demonstrates that the Applicant submitted its first appeal beyond the 60-day regulatory timeframe stipulated by 44 C.F.R. § 206.206(c)(1).  Accordingly, the appeal is denied as untimely.

 

[1] Project Worksheet 48, Lake County, Version 1 (Sept. 24, 2014).

[2] Letter from State Pub. Assistance Officer, Fla. Div. of Emergency Mgmt., to Budget Dir., Lake Cty. (Oct. 27, 2014).  This letter was an unsigned draft determination letter to the Applicant.

[3] The FloridaPA.org is a web-based system used by the Grantee and its applicants to manage and track all aspects of the PA grants process including appeals.  See FEMA Second Appeal Analysis, City of Pensacola, FEMA-1551-DR-FL, at 5 (Mar. 22, 2017) (explaining that FloridaPA.org “provides a mechanism to submit documentation for appeals, enables the exchange of communication between the Grantee and Applicant, and automatically records the dates of all actions performed by those using the system.”).

[4] The letter and P.2 were identical to the documents uploaded on October 28, 2014, except the letter was dated January 5, 2015.  Letter from State Pub. Assistance Officer, Fla. Div. of Emergency Mgmt., to Budget Dir., Lake Cty., at Attachment (Jan. 5, 2015).

[5] Email from Grant Specialist, Fla. Div. of Emergency Mgmt., to Budget Dir., Lake Cty. (Jan. 26, 2015, 4:15 PM). 

[6] Letter from State Pub. Assistance Officer, Fla. Div. of Emergency Mgmt., to Recovery Div. Dir., FEMA Region IV (Mar. 13, 2017).

[7] Id.

[8] This letter was uploaded to FloridaPA.org on January 26, 2015, and its content was identical to the Grantee’s letter uploaded to FloridaPA.org on October 28, 2014.

[9] Letter from Assistant Cty. Mgr., Lake Cty., to Recovery Div. Dir., FEMA Region IV (Feb. 23, 2017).

[10] Letter from State Pub. Assistance Officer, Fla. Div. of Emergency Mgmt., to Recovery Div. Dir., FEMA Region IV (Mar. 13, 2017).

[11] Letter from Assistant Cty. Attorney, Lake Cty., to Appeals Officer, Fla. Div. of Emergency Mgmt. (Dec. 11, 2017) [hereinafter Applicant’s Second Appeal].

[12] Id. at n.5.

[13] Letter from Interim Dir., Fla. Div. of Emergency Mgmt., to Assistant Adm’r, FEMA Office of Recovery Directorate (Dec. 22, 2017).

[14] Id. at n.1.

[15] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423(a), 42

U.S.C. 5189a (2006).

[16] 44 C.F.R. § 206.206 (2006).

[17] See Applicant’s Second Appeal, at 2 (conceding that “[o]n January 26, 2015, the [Grantee] emailed the P.2 to [the Applicant] which indicated that the overrun was denied.”).  The Grantee also uploaded the P.2 report and a notification letter advising the Applicant of its appeal rights to FloridaPA.org on January 26, 2015. 

[18] The factual background of this appeal materially differs from the facts presented in FEMA’s Second Appeal Analyses for Berkeley County, FEMA-4241-DR-SC (Apr. 17, 2018) and City of Pompano Beach, FEMA-1609-DR-FL (Feb. 27, 2018), as those appeals’ administrative records contained no evidence that the Grantee directly notified the Applicant of the appealable action and its appeal rights more than 60 days before the appeal was filed.  See Berkeley County, FEMA-4241-DR-SC, at 2–3 (explaining there was no evidence the Applicant received notice of the appealable action more than 60 days before the appeal was filed); City of Pompano Beach, FEMA-1609-DR-FL, at 4 (noting “the Grantee concede[d] that it did not notify the Applicant of these online postings”).  Here, the Grantee notified the Applicant of the appealable action by email with an attached determination letter describing the Applicant’s appeal rights on January 26, 2015, more than one year before the Applicant submitted its March 1, 2016 appeal.  In addition, the Applicant’s second appeal does not argue its first appeal was timely, and the Grantee’s second appeal now explains that it did not identify any technical issues with FloridaPA.org at the time of its January 26, 2015 email notification.  Based on the unique facts and circumstances of this appeal, FEMA finds that the Applicant received notice of the appealable action more than 60 days before it filed its first appeal, and deems any procedural error by FEMA Region IV in providing notice of its determination harmless.

Last updated May 28, 2020