Timeliness

Appeal Brief

Summary

In late January 2009, a winter storm caused severe ice build-up, causing trees and branches to fall and block public roads in the City of Greenville.  FEMA obligated$275,917.48 in funding under PW 671 (Version 0) for debris removal from the public roads.  After FEMA completed its final inspection, it deobligated $53,766.64 in ineligible labor, equipment, and material costs, under PW 671 (Version 1).  Kentucky Emergency Management (Grantee) transmitted a request for reconsideration on behalf of the Applicant, arguing FEMA incorrectly calculated the eligible costs because its final inspection contained mathematical and other miscellaneous errors.  FEMA confirmed the presence of errors, and as a result, obligated an additional $4,077.64 in funding under PW 671 (Version 2).  On July 23, 2013, the Grantee forwarded PW 671 (Version 2) to the Applicant; the Applicant received it on July 30, 2013.  The Grantee advised the Applicant if it did not agree with the determination, it had 60 days from receipt of the notice to request an appeal.  On July 31, 2013, the Grantee sent a second letter to the Applicant, reiterating that if the Applicant did not agree with the determination, it had 60 days to appeal.  On September 26, 2013, the Applicant transmitted a letter to the Grantee, requesting the results of the review that precipitated the approval of PW 671 (Version 2) so that it could file an appeal if it deemed it necessary.  On August 19, 2015, the Applicant transmitted a letter to the Grantee, which the Applicant requested be accepted as a formal appeal of FEMA’s attempted settlement for this project.  On February 9, 2017, FEMA Region IV’s Regional Administrator denied the Applicant’s August 19, 2015 appeal, determining it was untimely under 44 C.F.R. § 206.206(c).  The Applicant submitted a timely second appeal, arguing for the first time, that its letter dated September 26, 2013 was a timely appeal.    

Authorities and Second Appeals

• Stafford Act § 423(a)
• 44 C.F.R. § 206.206
• Dept. of Transp., FEMA-4068-DR-FL, at 3 (Aug. 5, 2016); City of Plattsburgh, FEMA-4020-DR-NY, at 4 (June 8, 2016).

Headnotes

• Under 44 C.F.R. § 206.206(a), an appeal must specify the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.
  • The Applicant’s September 26, 2013 letter did not include a specific monetary amount in dispute, and did not reference legal provisions with which Version 2 was inconsistent.  Moreover, the plain language in the letter demonstrates it was not an appeal.  As such, it does not satisfy the appeal content requirements of 44 C.F.R. § 206.206(a).
• Stafford Act § 423(a), as implemented by 44 C.F.R. § 206.206(c)(1), allows an applicant to appeal any Public Assistance determination within 60 days of receiving notice of the appealable action.
  • The Applicant filed a formal appeal of PW 671 (Version 2), almost two years after the 60-day timeframe required by 44 C.F.R. § 206.206(c)(1) expired.  As such, its first appeal was untimely.

Appeal Letter

Appeal Analysis

Background

In late January 2009, a winter storm caused severe ice build-up, causing trees and branches to fall and block public roads in the City of Greenville (Applicant), Kentucky.  On April 23, 2009, FEMA obligated $275,917.48 in funding under PW 671 (Version 0) to reimburse the Applicant for debris removal from public roads.  On September 12, 2011, after completing its final inspection, FEMA deobligated $53,766.64 in ineligible labor, equipment, and material costs, under PW 671 (Version 1). 

On July 8, 2012, about 18 months after FEMA approved PW 671 (Version 1), Kentucky Emergency Management (Grantee) transmitted a request for reconsideration to FEMA on behalf of the Applicant, arguing FEMA incorrectly calculated the eligible costs because its inspection contained errors as to: math or addition of figures, equipment codes, personnel overtime, volunteer meals, equipment repair, equipment hours, and temporary employee hours.  On October 2, 2012, FEMA acknowledged the presence of some errors in the final inspection,[1] and obligated an additional $4,077.64 in PW 671 (Version 2). 

On July 23, 2013, the Grantee forwarded PW 671 (Version 2) to the Applicant and included a letter advising that if it disagreed with the determination, it had 60 days from receipt of the notice to request an appeal.  The Applicant received the Grantee’s letter on July 30, 2013.  On July 31, 2013, the Grantee transmitted another letter to the Applicant, confirming that FEMA re-evaluated PW 671 and obligated an additional $4,077.64 in Version 2.  The July 31, 2013 letter reiterated that if the Applicant did not agree with the determination, it had 60 days from receipt of the notice to request an appeal.

On September 26, 2013, the Applicant transmitted a letter to the Grantee, arguing some of the errors the Applicant previously raised in its request for reconsideration were not addressed or were otherwise omitted.  As a result, the Applicant requested the results of the review “[i]n order to perfect an official appeal, if [it] deem[ed] it necessary.”[2] 

First Appeal

On August 19, 2015, the Applicant transmitted a letter to the Grantee, asking it to “accept [the] letter as [its] formal appeal,” and requesting FEMA obligate funding in the amount of $34,874.70.[3]  The Applicant stated it transmitted the letter after learning it needed to file an appeal.  The Applicant maintained it believed up to that point FEMA was still addressing or would be addressing its previous request to see the results of the reconsideration review.  The Grantee transmitted a letter to FEMA on August 19, 2015, concurring with the Applicant’s appeal.

On March 24, 2016, FEMA transmitted a final request for information, seeking clarification on: (1) the number of vehicle hours claimed by the Applicant; and (2) why the Applicant delayed in submitting its appeal.  Regarding the first item, the Applicant responded by providing updated charts detailing the amount of hours claimed per vehicle.  Regarding the second item, the Applicant first put the onus for the delay on FEMA, asserting the alleged errors still present on Version 2 of PW 671 required additional review.  It then stated it interacted with the Grantee on numerous occasions asking for advice on how to achieve a full review and contended that the Grantee made several attempts to correct the issues, including sending several emails to FEMA alerting it a full review needed to be completed, but FEMA was non-responsive.

On February 9, 2017, FEMA Region IV’s Regional Administrator (RA) denied the Applicant’s August 19, 2015 appeal, determining it was untimely under Title Code 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c).[4]  The Applicant received the first appeal determination on February 10, 2017.

Second Appeal

The Applicant appealed the RA’s determination to FEMA on April 11, 2017.  It argues, for the first time, that its letter dated September 26, 2013 was a timely appeal and requests $34,874.70 in additional eligible costs.  The Grantee forwarded the Applicant’s second appeal on April 13, 2017, concurring with the second appeal and supporting the funding request.

Discussion

Sufficiency of Appeal

Pursuant to 44 C.F.R. § 206.206(a), an appeal must specify the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.[5]

The Applicant asserts its September 26, 2013 letter was a timely first appeal.  Timely filing, however, is only one requirement of an appeal.  FEMA must first examine whether the letter satisfies the content requirements of 44 C.F.R. § 206.206(a).  First, FEMA notes the Applicant’s September 26, 2013 letter did not include a specific monetary amount in dispute, and did not reference legal provisions with which Version 2 was inconsistent.  Second, the plain language in the letter demonstrates it was not an appeal; specifically, the Applicant requested the results of the review that precipitated the approval of Version 2 so that it could file an appeal “if [it] deem[ed] it necessary.”[6]  Consequently, the Applicant’s letter dated September 26, 2013, fails to satisfy the content requirements of 44 C.F.R. § 206.206(a).

Timeliness

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423(a) 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.”[7]  44 C.F.R. § 206.206(c)(1) implements the section and states that applicants must submit appeals within 60 days of receipt of the notice of the action that is being appealed.  Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.[8] 

The Applicant received notice of FEMA’s award, PW 671 (Version 2), on July 30, 2013, and was specifically notified it had 60 days from receipt to request an appeal.  As such, the Applicant had until September 30, 2013 to submit a timely appeal.  While the Applicant submitted its September 26, 2013 letter before the appeal deadline expired, it does not satisfy the requirements of 44 C.F.R. § 206.206(a) and consequently is not viewed as an appeal for purposes of assessing timely submission.    

Ultimately, the Applicant did not file a document that met the substantive requirements as an appeal until August 19, 2015, almost 23 months after the 60 day timeframe required by 44 C.F.R. § 206.206(c)(1) expired.  As such, the Applicant’s first appeal was untimely.

Conclusion

The Applicant’s letter dated September 26, 2013 does not satisfy the content requirements of 44 C.F.R. § 206.206(a) and the Applicant’s appeal dated August 19, 2015, was untimely under 44 C.F.R. § 206.206(c)(1).  Consequently, the appeal is denied.