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Appeal Timeliness – 705(c)

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1561
ApplicantSouthwest Florida Water Management District
Appeal TypeSecond
PA ID#00-004B9-00,
PW ID#(PW) 6293
Date Signed2018-08-08T00:00:00

Summary Paragraph

On September 25, 2004, Hurricane Jeanne caused damage to the Lake Fannie Berm of the Southwest Florida Water Management District (Applicant).  As a result, FEMA prepared Project Worksheet (PW) 6293 for $179,284.00 in costs associated with repairs of an erosion control embankment.  The Applicant later submitted its second project performance time extension request, which FEMA denied, pending the submission and approval of an improved project request.  The Applicant submitted an improved project request, which FEMA approved in PW 6293 Version 1.  On December 2, 2011, however, FEMA denied the pending project performance time extension request, finding that the project was ineligible because funding was available from the National Resources Conservation Service.  The Florida Division of Emergency Management (Grantee) notified the Applicant of the determination via letter dated December 8, 2011.  On January 20, 2012, FEMA deobligated all funding in PW 6293 Version 2, and the Grantee notified the Applicant of the deobligation via letter dated January 30, 2012.  The Applicant submitted its first appeal by letter dated February 9, 2012.  The Grantee supported the Applicant’s appeal, and forwarded it to FEMA in a letter dated November 24, 2014.  FEMA denied the appeal on March 12, 2018, finding that the Grantee’s submission was outside the required 60-day timeframe under Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c).  In addition, FEMA found that Stafford Act section 705(c) did not bar deobligation of funds because the Applicant’s appeal rights had lapsed, and also found that not all of the prongs of section 705(c) were satisfied because no payment was made.  The Applicant submitted its second appeal via letter dated May 11, 2018, arguing against FEMA’s definition of “payment” and that principles of statutory construction prevented FEMA from denying an appeal based on a grantee’s untimeliness.  The Grantee transmitted the second appeal via letter dated June 15, 2018.  FEMA is denying the second appeal because the Grantee submitted the Applicant’s first appeal outside the requisite 60-day timeframe under 44 C.F.R. § 206.206(c).  Furthermore, section 705(c) of the Stafford Act does not prohibit FEMA from recovering funds because the Applicant’s first appeal is untimely and consequently, its appeal rights have lapsed.

 

Authorities and Second Appeals

  • Stafford Act, §§ 423(a), (c), 705(c).
    • 44 C.F.R. § 206.206.
    • FEMA Recovery Policy, Stafford Act Section 705, Disaster Grant Closeout Procedures, FP-205-081-2, at 2, 4-5 (Mar. 31, 2016).
    • FEMA Second Appeal Analysis, Nashville-Davidson Cty., FEMA-1909-DR-TN, at 4 ; FEMA Second Appeal Analysis, Broward Cty., FEMA-1602/1609-DR-FL, at 5 n.36; FEMA Second Appeal Analysis, City of Atlanta, FEMA-1858-DR-GA, at 6 ; FEMA Second Appeal Analysis, Town of Nichols, FEMA-4031-DR-NY, at 5; FEMA Second Appeal Analysis, Town of Windermere, FEMA-1561-DR-FL, at 5; FEMA Second Appeal Analysis, City of Sweetwater, FEMA-1345-DR-FL, at 4; FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4.

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 Applicant’s first appeal far outside the requisite 60 days of receipt, thus, the Applicant’s first appeal is untimely.
  • FEMA Recovery Policy FP 205-081-2 provides that Stafford Act section 705(c)’s prohibition against recoupment of funds does not apply to project worksheets where the applicant’s appeal rights have lapsed and FEMA has made a final administrative decision.
    • The Applicant’s first appeal was untimely, thus, its appeal rights lapsed.  Therefore, section 705(c) does not prohibit FEMA from recovering funds. 

 

Conclusion

The  Applicant’s first appeal was untimely because the Grantee submitted the appeal beyond the 60-day timeframe required by 44 C.F.R. § 206.206(c).  Consequently, the Applicant’s appeal rights lapsed and Stafford Act section 705(c) does not apply.

 

 

 

Appeal Letter

Wesley Maul

Director

Florida Department of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

 

Re:     Second Appeal – Southwest Florida Water Management District, PA ID: 00-004B9-00, FEMA-1561-DR-FL, Project Worksheet (PW) 6293 – Appeal Timeliness – 705(c)

 

Dear Mr. Maul:

 

This is in response to a letter from your office dated June 15, 2018, which transmitted the referenced second appeal on behalf of the Southwest Florida Water Management District (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s deobligation of $179,284.00 in costs pertaining to the repair of an erosion control embankment.

 As explained in the enclosed analysis, I have determined that the Applicant’s first appeal is untimely under Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) because the Florida Division of Emergency Management did not forward it to FEMA within 60 days of receipt.  In addition, Stafford Act section 705(c) does not prohibit FEMA from deobligating funding because the Applicant’s appeal was untimely, and thus, its appeal rights have lapsed.  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 B. Szczech

      Regional Administrator

      FEMA Region IV

 

Appeal Analysis

Background

Hurricane Jeanne made landfall in Florida on September 25, 2004, with high winds and flying debris causing damage to the Lake Fannie Berm of the Southwest Florida Water Management District (Applicant).  As a result, FEMA prepared Project Worksheet (PW) 6293 on December 5, 2005, for $179,284.00 in costs associated with repairing an erosion control embankment.  The Applicant requested a time extension to complete the permanent work, which the Florida Division of Emergency Management (Grantee) approved through September 25, 2008.  Then, on September 11, 2009, the Grantee submitted another time extension request for the Applicant through June 10, 2010.[1]  The Applicant had completed 10% of the project at that time, but based on an engineer’s recommendation, requested additional time to raise the berm crest higher than the original design based on 100-year flood event scenarios.  Via memo dated September 22, 2009, FEMA denied the request pending the Applicant’s submission and FEMA’s approval of an improved project.   

 

On November 13, 2009, the Applicant submitted a request for an improved project, requesting total costs of $330,996.00.[2]  In a letter dated January 19, 2010, the Grantee recommended approval of another time extension request for the Applicant, and stated that the Applicant had received approval from the Florida Department of Environmental Protection to construct the erosion control berm at an elevated level.[3]  On February 23, 2010, FEMA awarded PW 6293 Version 1, approving the improved project request, but capping funding at the original repair costs approved in Version 0.  The Applicant e-mailed the Grantee on February 24, 2011, asking for assistance in processing the Applicant’s payment.  The Applicant noted that the status of the payment had been with a Financial Specialist since January 24, 2011.[4]  The Grantee responded that there was an “unapproved time extension request pending since March 2010 that [was] preventing [the Grantee] from processing [the Applicant’s payment].”[5]  The Grantee indicated that it would follow up to determine the cause of the delay.[6]  On December 2, 2011, FEMA denied the pending project time extension request, finding that the project was ineligible for FEMA funding under Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(a) because assistance for the repairs was available from another Federal agency, the National Resources Conservation Service (NRCS).[7] 

 

The Grantee notified the Applicant of the determination via letter dated December 8, 2011.  The notification letter from the Grantee advised the Applicant that it could appeal the determination and if it did so, it must be in writing and submitted to the Grantee within 60 days of receipt of the notice.[8]  On January 20, 2012, FEMA deobligated all funds for the project in PW 6239 Version 2.  The Grantee also forwarded to the Applicant the project summary report memorializing the deobligation of all funding previously awarded for PW 6293, via a letter dated January 30, 2012.[9]

 

First Appeal

 

The Applicant submitted its first appeal in a letter dated February 9, 2012, requesting approval of the previously denied time extension request and reimbursement of eligible costs in the amount of $179,284.00.[10]  The Applicant argued that it was not a fair administration of the Public Assistance  program for FEMA to deobligate funding six years after approving the initial PW.  In addition, the Applicant argued that FEMA had failed to identify all eligible work when it approved the project without first consulting NRCS to determine if the work was eligible under that program.  The Applicant also contended that FEMA’s reliance on 44 C.F.R. § 206.226(a) was misplaced, because the word “generally” in the regulation demonstrated that FEMA had discretion to approve funds for the restoration of facilities, even if another Federal agency had the authority to fund the repair.[11]  Moreover, the Applicant noted that FEMA’s policy in the Public Assistance Guide provided that FEMA “will” contact another Federal agency if the other agency has authority to fund the work, and FEMA would ask that agency to determine whether the work would be eligible under the agency’s authority.[12]  The Applicant stated that because FEMA had not provided any proof that it had contacted NRCS before deobligating funds, FEMA had not satisfied its own policy and regulations.  Furthermore, the Applicant stated that it had contacted NRCS after the deobligation and learned that the project would not have been eligible for funding under NRCS authority.[13]  The Applicant noted also that under FEMA Disaster Assistance Policy 9524.3, FEMA can fund projects that otherwise are not eligible for funding from NRCS or the U.S. Army Corps of Engineers, and could have done so in PW 6293.  Finally, the Applicant stated that it had met its burden to provide sufficient justification for a project performance extension request under 44 C.F.R. § 206.204(d) because it had submitted and received approval for an improved project, as FEMA had requested in its September 22, 2009 memorandum.  

 

The Grantee transmitted the Applicant’s first appeal via a letter dated November 24, 2014, noting that the Applicant had submitted its first appeal timely to the Grantee.[14]  The Grantee recommended that FEMA grant the appeal, based on the arguments the Applicant had made in its first appeal letter.  In addition, the Grantee argued that FEMA was barred from deobligating funds under section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988.[15]  The Grantee contended that all three prongs of section 705(c) were met, given that there was an approved agreement specifying costs when FEMA approved PW 6293; the costs were reasonable given that FEMA had approved Version 0 and then approved Version 1, capping the costs at the original approved amount; and the purpose of the grant was accomplished because the Applicant completed the approved scope of work in March 2010.[16] 

 

FEMA Region IV issued a Final Request for Information (RFI) on July 18, 2017, requesting documents and information showing that the Grantee transmitted the Applicant’s appeal to FEMA within the requisite 60 days of receipt per 44 C.F.R. § 206.206(c)(2).  The Applicant responded to the Final RFI by letter dated August 17, 2017, stating that it could not demonstrate that the Grantee had submitted the first appeal timely, only that the Applicant had done so.[17]  The Applicant also submitted e-mails showing it had inquired of the status of the appeal with the Grantee, and that the Grantee had informed the Applicant that FEMA “historically” had relied only on the Applicant’s timeliness, not the Grantee’s.[18]  In addition, the Applicant submitted an e-mail showing that the Grantee notified the Applicant on November 14, 2014, that FEMA had no record of the appeal.[19]  Finally, the Applicant argued that based on basic concepts of statutory construction, there was a difference between the use of “must” and “will” in 44 C.F.R. § 206.206(c), and that while “must” imposes an obligation, “will” is interpreted to predict future actions.[20]  Thus, the Applicant argued that FEMA should not penalize the Applicant for the tardiness of the Grantee when the regulations do not impose a penalty for a grantee’s untimely submission.  The Grantee responded to the Final RFI by letter dated August 22, 2017, stating that it had no additional information to demonstrate that it had submitted the appeal timely.  The Grantee also argued that section 705(c) of the Stafford Act was a statutory bar, not an affirmative defense that the Applicant and Grantee needed to raise; therefore, the Grantee should not have to demonstrate the timeliness of the appeal until FEMA made a finding regarding section 705(c).[21] 

 

The FEMA Region IV Regional Administrator (RA) issued the first appeal determination dated March 12, 2018.  The RA found that the appeal was untimely because the Grantee had submitted the appeal more than 1,000 days past the 60-day regulatory timeframe, and as a result, the RA would not consider the substantive issues.[22]  Citing FEMA Recovery Policy, Stafford Act Section 705, Disaster Grant Closeout Procedures, FP-205-081-2 (Recovery Policy FP-205-081-2), the RA also noted that the protections of section 705(c) of the Stafford Act did not apply because the Applicant’s first appeal was untimely; therefore, the Applicant’s appeal rights had lapsed.  In addition, the RA stated that even if timeliness were not an issue, Stafford Act section 705(c) would not prohibit deobligation because there was no payment made, given that the Grantee had not drawn down funds from SmartLink.[23]

 

Second Appeal

 

The Applicant submits its second appeal by letter dated May 11, 2018.  As it did in its Final RFI response, the Applicant argues that there is a distinction between “must” and “will” in 44 C.F.R. § 206.206(c), and therefore FEMA should not penalize the Applicant for the Grantee’s tardiness where the regulations use a word that predicts future action of a grantee, rather than imposes a requirement.  In addition, the Applicant argues that FEMA did not abide by its own deadlines in issuing both the Final RFI and the first appeal decision; thus, all other submission deadlines were rendered meaningless and unenforceable.  The Applicant also contends that FEMA created a new definition of the word “payment” in Recovery Policy FP-205-081-2 for purposes of section 705(c) of the Stafford Act.  The Applicant argues that there is no definition of “payment” under 44 C.F.R. § 206.201, and that defining “payment” as when a grantee draws down funds from SmartLink creates a backdoor for FEMA to get around the Stafford Act’s prohibitions against recovering funds.  The Applicant states that the obligation of funds is FEMA’s authorization for an applicant to use those funds for the approved project through reimbursements by the grantee, thus satisfying section 705(c)’s payment prong.  The Grantee transferred the Applicant’s second appeal to FEMA via a letter dated June 15, 2018, reiterating the same arguments the Grantee made on first appeal. 

 

Discussion

 

Appeal Timeliness

 

Section 423(a) of the Stafford Act provides that “any decision regarding eligibility for . . . assistance . . . 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.”[24]  Within 60 days of receiving an applicant’s appeal, a grantee will review and forward the appeal with a written recommendation.[25]  If either the applicant or the grantee fail to meet these deadlines, the appeal is untimely and the applicant’s appeal rights lapse.[26]  In addition, an applicant has the burden of substantiating its arguments and must explain how documentation supports its appeal, including demonstrating appeal timeliness.[27]

 

According to the date stamps marked “received” on the Grantee’s December 8, 2011 notification letter and the December 2, 2011 notification letter from FEMA, the Applicant received notice of the time extension request denial and the work ineligibility determination on December 12, 2011.  In addition, the Grantee’s notification letter dated January 30, 2012, informed the Applicant of the final deobligation of funding in PW 6293 Version 2.  The Applicant then submitted its first appeal of these determinations in a letter dated February 9, 2012.  The Grantee’s first appeal transmittal letter, however, was dated November 24, 2014, well past the 60-day timeframe outlined in 44 C.F.R. § 206.206(c)(2), and neither the Applicant nor the Grantee have demonstrated that the Grantee submitted the appeal to FEMA prior to that date.  Thus, the Applicant’s first appeal was untimely and its appeal rights lapsed. 

 

Stafford Act section 705(c)

 

Stafford Act section 705(c) prohibits FEMA from recovering funding that FEMA previously awarded 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.”[28]  FEMA Recovery Policy FP-205-081-2 provides that FEMA is not prohibited from deobligating funds under section 705(c) when an applicant’s appeal is untimely and the applicant’s appeal rights have lapsed.[29] 

 

Here, the Grantee submitted the Applicant’s appeal past the requisite 60-day regulatory timeframe, making the Applicant’s first appeal untimely.  Therefore, the RA correctly determined that under Recovery Policy FP-205-081-2, FEMA is not prohibited from recovering funds under section 705(c) due to the Applicant’s untimely appeal.[30] 

 

 

 

Conclusion

 

The Applicant’s first appeal is untimely because the Grantee submitted the appeal beyond the requisite 60-day timeframe.  In addition, section 705(c) of the Stafford Act does not prohibit FEMA from deobligating funds because the Applicant’s appeal rights have lapsed.  Accordingly, the second appeal is denied. 

 

 

[1] Letter from Senior Attorney, Sw. Fla. Water Mgmt. Dist., to Dir., Fla. Div. Emergency Mgmt. (FDEM) (Feb. 9, 2012) [hereinafter Applicant’s First Appeal Letter], at Ex. 3 (Memorandum from Sw. Fla. Water Mgmt. Dist., to Mgmt. Analyst, at 1 (Sept. 11, 2009) (“Number of Previous Extensions 1 Providing Time Through 9-25-08”)).

[2] Applicant’s First Appeal Letter, at Ex. 5 (Request for Improved Project, FEMA-1561-DR-FL, PW 6293, at 1-2 (Nov. 13, 2009)).

[3] Letter from Interim Dir., Fla. Div. of Emergency Mgmt. (FDEM), to Reg’l Adm’r, FEMA Region IV, at 1 (Jan. 19, 2010).

[4] Applicant’s First Appeal Letter, at Ex. 8 (E-mail from Accountant II, Sw. Fla. Water Mgmt. Dist., to Grant Specialist V, FDEM (Feb. 24, 2011, 1619 EDT)). 

[5] Applicant’s First Appeal Letter, at Ex. 8 (E-mail from Grant Specialist V, FDEM, to Accountant II, Sw. Fla. Water Mgmt. Dist (Feb. 25, 2011, 1627 EDT)). 

[6] The administrative record does not demonstrate what, if any, steps the Grantee took to investigate the delay in the project time extension request determination.   

[7] Letter from Reg’l Adm’r, Region IV, FEMA, to Dir., FDEM, at 1 (Dec. 2, 2011).

[8] Letter from Governor’s Authorized Representative, FDEM, to Accounting and Fin. Reporting Mgr., Sw. Fla. Water Mgmt. Dist., at 1 (Dec. 8, 2011).

[9] The letter again informed the Applicant of its appeal rights and appeal procedural requirements.

[10] Applicant’s First Appeal Letter, at 1.

[11] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(a)(1) (2003) (“Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declard a major disaster.”).

[12] Applicant’s First Appeal Letter, at 3 (citing Public Assistance Guide, FEMA 322, at 23-24 (June 2007)).  While the Applicant cited to the 2007 version of the Public Assistance Guide instead of the applicable 1999 version, the difference between the two versions is negligble. 

[13] Applicant First Appeal Letter, Ex. 12 (E-mail to from Representative, National Resources Conservation Service (NRCS), to Field Operations Mgr., Sw. Fla. Water Mgmt. Dist. (Dec. 19, 2011, 1140 EST) (forwarding internal e-mail between NRCS representatives (Dec. 16, 2011, 1327 EST)).  The internal e-mail between NRCS personnel stated that the repairs were not eligible (at the time of the Applicant’s inquiry), given that requests needed to be made within 60 days of the disaster event, and that repair work could not start prior to the parties entering into an agreement.

[14] Letter from Dir., FDEM, to Reg’l Adm’r, FEMA Region IV, at 1 (Nov. 24, 2014).

[15] Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) of 1988 § 705(c), 42 U.S.C. § 5205(c) (2000).

[16] Id. at 2-3.

[17] Letter from Assistant Gen. Counsel, Sw. Fla. Water Mgmt. Dist., to Dir., Recovery Div., FEMA Region IV, at 1 (Aug. 17, 2017) [hereinafter Applicant’s Final RFI Response].

[18] Applicant’s Final RFI Response, Ex. B (E-mail from Dep. Bureau Chief, Recovery, FDEM, to Dep. Pub. Assistance Officer, Recovery, FDEM (Apr. 18, 2012, 1349 EDT)).

[19] Applicant’s Final RFI Response, Ex. B (E-mail from Appeals Officer, FDEM, to Representatives, Sw. Fla. Water Mgmt. Dist. (Nov. 14, 2014, 1010 EST)).

[20] Applicant’s Final RFI Response, at 1.

[21] Letter from Dir., FDEM, to Dir., Recovery Div., FEMA Region IV, at 2 (Aug. 22, 2017).  The Grantee’s Final RFI Response letter was date-stamped August 22, 2017, and also had a hand-written date of August 21, 2017, in the signature block. 

[22] FEMA First Appeal Analysis, Sw. Fla. Water Mgmt. Dist., FEMA-1561-DR-FL, at 2-3 (Mar. 12, 2018).

[23] Id. at 3-4 (citing Recovery Policy FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 4 (Mar. 31, 2016)) [hereinafter Recovery Policy FP-205-081-2].  SmartLink is FEMA’s payment management system, through which FEMA transmits obligated funds to grantees for disbursement.  

[24] Stafford Act § 423(a), 42 U.S.C. § 5189a.

[25] 44 C.F.R. § 206.206(c)(2).

[26] FEMA Second Appeal Analysis, City of Atlanta, FEMA-1858-DR-GA, at 6 (May 10, 2018).

[27] FEMA Second Appeal Analysis, Nashville-Davidson Cty., FEMA-1909-DR-TN, at 4 (July 2, 2018) (citing FEMA Second Appeal Analysis, Town of Nichols, FEMA-4031-DR-NY, at 5 (May 10, 2018), and FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (an “[a]pplicant has the burden of substantiating its claims . . .”)).

[28] Stafford Act § 705(c), 42 U.S.C. § 5205.

[29] FEMA Second Appeal Analysis, Broward Cty., FEMA-1602/1609-DR-FL, at 5 n.36 (May 10, 2018) (citing FEMA Second Appeal Analysis, City of Sweetwater, FEMA-1345-DR-FL, at 4 (Aug. 15, 2017); Recovery Policy FP-205-081-2, at 4).

[30] FEMA has determined that the Applicant’s appeal rights lapsed; thus, the Applicant’s argument concerning Stafford Act § 705(c)(1) is moot.  As a result, this decision does not address the issue.

Last updated May 28, 2020