Association of Community Organizations v. Fema

• Decision Date: 29 November 2006
• Docket Number: No. 06 CV 1521 RJL.,06 CV 1521 RJL.
• Citation: 463 F.Supp.2d 26
• Parties: ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN), et al. Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) Defendant.
• Court: U.S. District Court — District of Columbia

463 F.Supp.2d 26

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN), et al. Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) Defendant.

No. 06 CV 1521 RJL.

United States District Court, District of Columbia.

November 29, 2006.

COPYRIGHT MATERIAL OMITTED

Michael T. Kirkpatrick, Deepak Gupta, Washington, DC, for Plaintiffs.

Christopher R. Hall, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

LEON, District Judge.

Before the Court is a motion for a preliminary injunction [# 3] filed by a national community organization, the Association of Community Organizations for Reform Now ("ACORN")¹ on behalf of several thousand evacuees of Hurricanes Katrina and Rita² and four individual Hurricane Katrina evacuees.³ In essence, plaintiffs contend that the Federal Emergency Management Agency ("FEMA") violated the due process rights of those hurricane evacuees who were denied long-term housing benefits under Section 408 of the Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"), 42 U.S.C. § 5174(b), by failing to provide them explanations that were sufficiently detailed to enable them to file a meaningful appeal. As a result, plaintiffs seek declaratory and injunctive relief requiring FEMA to provide adequate, written notice for any decisions to deny housing assistance to these evacuees under Section 408 and the continuation or restoration, of temporary housing assistance until such notice and opportunity to appeal is provided. It is unfortunate, if not incredible, that FEMA and its counsel could not devise a sufficient notice system to spare these beleaguered evacuees the added burden of federal litigation to vindicate their constitutional rights. Nevertheless, after due consideration of the parties' submissions, the relevant law, and the entire record herein, the Court GRANTS plaintiffs' motion.

BACKGROUND

In 2005, FEMA determined, pursuant to a presidential disaster declaration, that the evacuees from Hurricanes Katrina and Rita qualify for short-term housing rental assistance under Section 403 of the Stafford Act, 42 U.S.C. § 5170b. FEMA immediately began making payments to those evacuees. (Def.'s Opp. to Req. Prelim. Inj. ("Def.'s Opp.") at 4-6.) Beginning in February 2006, however, FEMA attempted to transfer those evacuees that were eligible to its longer-term Section 408 housing program, which provides up to eighteen months of housing assistance to disaster evacuees. (Id. at 8.) Unlike Section 403, individuals must apply for assistance under Section 408 and meet certain statutory and regulatory criteria. (Id. at 5 (citing 42 U.S.C. § 5174(b); 44 C.F.R. §§ 206.110(h), 206.113(b)(1), 206.113(b)(6)).) During this process, FEMA would ultimately deny the Section 408 applications of thousands of evacuees, and after a thirty day notice period, terminate their Section 403 benefits. (Pls.' Mot. TRO ("TRO") at 3.)

When FEMA notified the evacuees in March of 2006 of their ineligibility for Section 408 benefits, they used "standardized" form letters generated by a computer program that purportedly makes automatic determinations on the evacuees' applications. Each letter cryptically indicated, by a code or phrase inserted therein, FEMA's decisions and, if necessary, its purported reason for denying (or terminating) benefits.⁴ (Def.'s Opp. at 10.) In addition to the information provided by these letters, evacuees were provided with, or could obtain, a copy of the evacuee Applicant Guide, entitled "Help After A Disaster," that provides explanations for the codes and phrases in the letters from FEMA and provides specific information regarding the processes for appealing adverse eligibility determinations. (Def.'s Opp. at 10 (citing Dannel's Decl. ¶¶ 28-29); TRO, Ex., 2.) Also, attached to each letter was a "notice" that provides non-individualized details regarding the appeals process. (Def.'s Opp. at 11-12.) Beyond the code or phrase inserted automatically into each letter, FEMA provided little other individual explanation for its decision to deny or terminate benefits. To the contrary, FEMA frequently sent more than one letter to an evacuee containing contradictory codes or explanations, (see, e.g., Compl., Ex. 1.), and calls by evacuees to a "toll-free helpline" frequently resulted in conflicting "review of the applicant's case file on the spot" that plaintiffs found "confusing and chaotic." (TRO, Ex. 7; see also TRO, Exs. 7-11, 15-17.)⁵

The transition from Section 403 to Section 408 relief, which was conducted pursuant to a Disaster Specific Guidance, ended up taking months to effectuate. (See Def.'s Opp. at 8-10.) Indeed, FEMA extended its deadline to terminate Section 403 benefits a number of times as a result of requests from local governments and charities. (Id. at 9.) By July 26, 2006, FEMA had extended the entire Section 403 program until August 31, 2006. (Id. at 9-10.) However, when the City of Houston requested a fourth extension on August 18, 2006 for the thousands of evacuees that had been deemed ineligible for Section 408 assistance, FEMA granted the request for only 113 of those households.⁶ (Id. at 10.)

Thus, on August 31, 2006, plaintiffs filed a TRO with this Court seeking an order restraining FEMA from terminating that day the temporary housing benefits to thousands of evacuees who had applied unsuccessfully for long-term assistance under Section 408. The Court heard oral arguments from both sides via teleconference call, denied the TRO, set a briefing schedule for the preliminary injunction opposition and reply briefs, and set a hearing for oral argument on the preliminary injunction for September 15, 2006. Although the Court denied the TRO, it specifically warned FEMA that if they went ahead and terminated the evacuees' short-term housing benefits prior to this Court's ruling on the preliminary injunction, the Court may order back-payments from September 1, 2006 through the appeals process should this Court ultimately agree with plaintiffs' constitutional claims. Notwithstanding the Court's warning, FEMA terminated the short-term benefits that day for all but the 113 households and two of the named plaintiffs, for which FEMA extended benefits until September 30, 2006. (See Tr. of Sept. 15, 2006 at 18; Def.'s Opp at 10; Mot. Dismiss at 7.)

ANALYSIS

Initially, FEMA advances two procedural challenges to plaintiffs' lawsuit: (1) this Court lacks subject matter jurisdiction over plaintiffs' claims; and (2) ACORN lacks standing to bring this suit on behalf of the thousands of evacuees in its organization. For the following reasons, the Court disagrees with both.

I. Subject Matter Jurisdiction

FEMA argues that this Court lacks subject matter jurisdiction because Congress has not waived sovereign immunity for claims brought pursuant to the Stafford Act or the Administrative Procedures Act ("APA"). (Def.'s Opp. at 17-21.) Specifically, both the Stafford Act and the APA provide that acts that are taken within the discretion of the federal agency are not reviewable in court.⁷ FEMA's suggestion, however, that the procedure and notice FEMA employed "to notify disappointed applicants of their status" are barred from review is, at best, a stretch. (See Def.'s Opp. at 21). Plaintiffs challenge under the Due Process Clause is to FEMA's notice of their ineligibility, not to FEMA's eligibility decision itself. Because "adherence to constitutional guidelines is ... mandatory," FEMA is not immunized from judicial review of alleged constitutional violations. Rosas v. Brock, 826 F.2d 1004, 1008 (11th Cir.1987)⁸ Accordingly, this Court finds that it has the authority to review plaintiffs' constitutional challenge to FEMA's notice.

II. Standing

FEMA's second procedural challenge is its contention that ACORN lacks standing to sue on behalf of its members, (Def.'s Opp. at 21-27), because the due process claims asserted by ACORN must by litigated as to each individual applicant, and because the claims related to housing benefits are not germane to ACORN's purpose. The Court disagrees and, for the following reasons, concludes that ACORN has sufficiently demonstrated its legal basis to sue on behalf of these evacuees.

For an organization to sue on behalf of its members, it must meet the three part test for associational standing as set out by the Supreme Court, namely, that: "(a) its members would otherwise have standing to sue in their own right; (b) the interest it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see also Truckers United for Safety v. Mead, 251 F.3d 183, 188-89 (D.C.Cir.2001).

To satisfy the first prong of the Hunt test, ACORN must show that "its members, or any one of them," Hunt, 432 U.S. at 342, 97 S.Ct. 2434, (quoting Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)), have standing to sue on their own behalf: In this case, ACORN filed the declarations of numerous members who were each denied Section 408 benefits via letters from FEMA that they claim provide insufficient explanation. It is clear that each of those individuals have standing to challenge those letters from FEMA as providing insufficient due process, and, thus, this first prong is easily satisfied.

As to the second Hunt prong, FEMA's argument that the issues in this case are not germane to ACORN's "self-described mission" is, at best, disingenuous. FEMA, by its own admission, recognizes that ACORN advocates for the fair treatment of its members, including for the protection of their right to housing benefits, and, as part of that mission, is operating a Katrina Survivor's Association⁹ to further these goals on behalf of hurricane survivors. (Def.'s Opp. at 23; see also TRO, Ex. 16.) Thus, as the germaneness...