Immediate Threat

Appeal Brief

Summary Paragraph

The COVID-19 pandemic resulted in a major disaster declaration for the state of Mississippi, with an incident period of January 20, 2020, through May 11, 2023. The Applicant requested $402,500.00 for the purchase of a bank building and associated moving expenses. The Applicant stated it purchased the building to relocate some offices from the courthouse to the new building in order to implement social distancing. FEMA issued a Determination Memorandum, denying the claimed costs, concluding that the purchase and associated moving expenses were not eligible emergency protective measures and represented increased operating costs of continuing to provide routine services. The Applicant filed a first appeal dated May 23, 2023. The Applicant stated the purchase and associated costs were unforeseen expenses associated with eligible emergency protective measures that were necessary for social distancing and the safe opening and operation of its courthouse in order to prevent the spread of COVID-19. On November 27, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the purchase of a building and associated moving expenses to maintain social distancing were not considered emergency protective measures in response to an immediate threat from COVID-19. The Applicant submitted a second appeal, reiterating its first appeal arguments. 

Authorities

• Stafford Act §§ 403(a)(3). 
• 44 C.F.R. §§ 206.223 (a)(1), 206.225 (a).
• PAPPG, at 19, 57, and 63. 
• O&O Policy, at 5; Work Eligible for Public Assistance Policy, at 4-5; FEMA Fact Sheet Eligible Emergency Protective Measures, at 1-2.

Headnotes

• For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident. FEMA may provide assistance for measures implemented to facilitate the safe opening and operation of eligible facilities, including the purchase and installation of physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing.
  • The Applicant has not demonstrated the costs associated with purchasing the building or moving to that building qualify as temporary physical barriers under the O&O policy nor that the costs are associated with any eligible activities in any of FEMA’s other COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat resulting from the declared incident.

Conclusion

The Applicant’s purchase of a building and associated moving expenses are not eligible emergency protective measures in response to an immediate threat from COVID-19 and, thus, are ineligible for PA funding. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a disaster declaration on April 5, 2020, for the state of Mississippi, with an incident period of January 20, 2020, through May 11, 2023. Alcorn County (Applicant) requested $402,500.00 in Public Assistance (PA) funding for the purchase of a former bank building and associated moving expenses that occurred from

June 2020 through June 2022. In its project application, the Applicant stated that: 1) it purchased the building to move its tax collector and tax assessor’s offices out of its courthouse building in order to adhere to COVID-19 social distancing guidelines; 2) the bank building provided sufficient space for social distancing and exterior teller windows for the public to access tax services without coming into the building; and 3) the purchase allowed it to use the vacated courthouse office space for social distancing and to transition from performing temporary COVID-19 protective measures (i.e., a building rental) to performing permanent COVID-19 protective measures (i.e., a building purchase).

On April 27, 2023, FEMA issued a Determination Memorandum denying the Applicant’s request. FEMA stated that the building purchase and associated moving expenses were not related to eligible emergency protective measures and instead, represented ineligible increased operating costs. 

First Appeal 

In a letter dated May 23, 2023, the Applicant submitted a first appeal, contending that the claimed expenses were unbudgeted and unforeseen. The Applicant further claimed that the additional office space was necessary to protect public health and safety and allow social distancing during the pandemic, and to continue providing essential court services while adhering to federally mandated lockdowns and Mississippi Supreme Court promulgated rules. The Applicant provided supporting documentation, including court orders and updates, and various articles addressing the COVID-19 outbreak and preparedness plans. In a letter dated 

May 31, 2023, the Mississippi Emergency Management Agency (Recipient) transmitted the first appeal to FEMA, expressing its support.  On November 27, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant’s costs associated with purchasing a building and moving expenses were not considered eligible emergency protective measures under any of FEMA’s COVID-19 policies and, thus, were ineligible for PA. Specifically, FEMA stated that purchasing a building to relocate some offices to allow for social distancing and the continued operation of the courthouse went beyond eligible emergency protective measures authorized in FEMA’s Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) (O&O Policy),[1] such as temporary physical barriers and signage to support social distancing.

Second Appeal

In a letter dated January 9, 2024, the Applicant submitted an appeal to the Recipient.[2] The Applicant reiterates its first appeal arguments and then emphasizes the expenses were not increased operating costs but instead were unbudgeted, unforeseen, and necessary to comply with state and federal regulations and guidelines on social distancing, and to create a safe work environment to protect its staff and citizens from COVID-19. The Applicant states it bought a building instead of leasing one because it was the only option that allowed it to stay within one mile of the courthouse building as required by state law. The Applicant adds that there was limited rental space within a one-mile radius, but it would have had to relocate if the building was sold during the rental period. The Applicant states that leasing was an inadequate solution to a long-term situation and emphasizes that staff and citizens had a fear of contracting COVID-19 by being in small, enclosed spaces at the time the decision was made to purchase rather than lease a building. By letter dated January 17, 2024, the Recipient transmitted the second appeal to FEMA.

Discussion

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[3] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[4] In response to COVID-19, eligible emergency protective measures include certain specific, limited measures implemented to facilitate the safe opening and operation of an eligible facility, including the purchase and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing, such as floor decals.[5]

The Applicant is claiming costs associated with purchasing a building and associated moving expenses to allow for social distancing and the continued operation of the courthouse. However, these activities go beyond the emergency protective measures authorized in the O&O Policy. The Applicant has neither demonstrated that the costs are associated with eligible social distancing measures outlined under the O&O policy nor that the costs are associated with any eligible activities in any of FEMA’s other COVID-19 policies, or any comparable activity that eliminates or lessens an immediate threat resulting from the declared incident.[6] Therefore, the requested costs are not eligible for PA.

Conclusion

The Applicant’s purchase of a building and associated moving expenses are not eligible emergency protective measures in response to an immediate threat from COVID-19 and, thus, are ineligible for PA funding. Therefore, this appeal is denied.