Barbosa v. U.S. Dep't of Homeland Sec., 17-5206
| Decision Date | 01 March 2019 |
| Docket Number | No. 17-5206,17-5206 |
| Citation | 916 F.3d 1068 |
| Parties | Daniel BARBOSA, et al., Appellants v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and Federal Emergency Management Agency, Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Amanda Flug Davidoff, Washington, DC, argued the cause for appellants. With her on the briefs were Adam R. Brebner, New York, NY, Jerome Wesevich, El Paso, TX, and Edward Tuddenham.
Julie A. Murray, Brielle, NJ, and Scott L. Nelson, Washington, DC, were on the brief for amicus curiae Public Citizen, Inc. in support of plaintiffs-appellants.
Michael L. Foreman, was on the brief for amici curiae National Low Income Housing Coalition, et al. in support of plaintiffs-appellants.
Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Alisa B. Klein and Carleen M. Zubrzycki, Attorneys.
Before: Katsas, Circuit Judge, and Silberman and Williams, Senior Circuit Judges.
A number of applicants sought Stafford Act economic relief from FEMA because of storm damage. They, accompanied by La Union del Pueblo Entero, appeal the district court's dismissal. We, however, agree with the district court. We lack jurisdiction over their claims because of a statutory preclusion of judicial review.
The Stafford Act authorizes the President to provide relief in response to "major disasters." The President has delegated authority under the Stafford Act to the Federal Emergency Management Agency ("FEMA"), a subdivision of the Department of Homeland Security. In 2000, Congress established the Federal Assistance to Individuals and Households Program. Unlike the traditional approach of Stafford Act programs, which disburse federal funds to the states, which in turn disburse those funds to individuals, under this program, the federal government may provide forms of direct relief to individuals and households after a major disaster has been declared by the President.1
The statute creating the program contains three specific statutory provisions designed to guide its implementation. They call for the issuance of regulations as follows:
But there is a fourth statutory provision of the Stafford Act applying to this case, a preclusion of judicial review, which governs our jurisdiction:
"The Federal Government shall not be liable for any claim upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter." 42 U.S.C. § 5148 (emphasis added).
* * *
The government has promulgated regulations pursuant to the statutory mandates.2
Starting with 42 U.S.C. § 5151(a), the nondiscrimination mandate, FEMA issued a regulation that provides for nondiscrimination in disaster assistance.3 Although, in part, it echoes the statutory language, it does more. It also states "government bodies and other organizations [participating in Stafford Act programs] shall provide a written assurance of their intent to comply with regulations relating to nondiscrimination," and provides that the agency "shall make available" to "interested parties ... information regarding" its nondiscrimination regulation. Perhaps most significant, as the district court noted, the regulation states "Federal financial assistance to the States or their political subdivisions is conditioned on full compliance with" regulations entitled "Nondiscrimination in Federally-Assisted Programs."4 That provision states explicitly: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this regulation applies." Inter alia , the nondiscrimination regulations identify specific discriminatory actions prohibited, require that assurances of nondiscrimination accompany applications, and contain extensive provisions regarding conducting compliance investigations.
FEMA has also promulgated regulations, purportedly, "to carry out" the program, "including criteria, standards, and procedures for determining eligibility for assistance," as mandated by 42 U.S.C. § 5174(j).5 The regulations include provisions calling for the payment of "necessary expenses" or "serious needs" for those "unable to meet such expenses" caused by disasters "through other means." This provision states the maximum amount of assistance ($ 25,000, adjusted "annually to reflect changes in the Consumer Price Index"), the multiple types of assistance, the date of eligibility, the duration of assistance (not longer than 18 months unless exceptional circumstances exist), and details about how assistance will be characterized and treated (not counted as income, exemption from garnishment, and duplication of benefits). A regulation also defines certain terms used in the regulations, including "[h]ousing costs," "[s]afe," and "[u]ninhabitable." The regulations state the registration period (60 days after declaration of major disaster or emergency) and provide for extensions and late registrations.
Another provision, of obvious significance, describes when funds for repairs will be granted ("[if:] [t]he component [of a structure] was functional immediately before the declared event; [t]he component [of a structure] was damaged, and the damage was caused by the disaster; [t]he damage to the component [of a structure] is not covered by insurance; and [r]epair of the component [of a structure] is necessary to ensure the safety or health of the occupant or to make the residence functional"). It further lists the components that are eligible for repair through housing assistance (including "[s]tructural components of the residence," "[w]indows and doors," and "[t]he Heating, Ventilation and Air Conditioning system").
Even more detail is provided by a provision that establishes nine "[c]onditions of eligibility" and ten "[c]onditions of ineligibility." "FEMA may only provide assistance" when the eligibility conditions have been met. Assistance may be provided "[w]hen the individual or household has incurred a disaster-related necessary expense or serious need in the state in which the disaster has been declared, without regard to their residency in that state." These conditions also provide for assistance even in some situations where individuals have insurance. Other conditions also describe the necessary state of the renter's or owner's residence in order to qualify for housing assistance: "primary residence has been destroyed, is uninhabitable, or is inaccessible." The ten conditions of ineligibility speak to circumstances in which the individuals or households still have access to their homes or to accommodations, have adequate insurance, or meet other criteria.
Of particular concern to Appellants, FEMA's provisions governing appeals as mandated by 42 U.S.C. § 5189a(c) list the determinations applicants may appeal, state that "[a]ppeals must be in writing and explain the reason(s) for the appeal," provide for requesting files related to the applicant, and describe the period of appeal and to whom appeals must be directed. These provisions explain that an appellant will receive "a written notice of the disposition of the appeal within 90 days of the receiving of the appeal," and that "the decision of the appellate authority is final." The regulations also state that an appeal of a determination regarding repair assistance "must provide proof ... that the component was functional before the declared event and proof that the declared event caused the component to stop functioning" and, if disputing the amount of assistance granted, "must also provide justification for the amount sought."
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Appellants are twenty-six individuals who resided in Texas and whose homes suffered damage during one of three storms in 2015 and 2016 declared major disasters, accompanied by La Union del Pueblo Entero, a non-profit organization. The individual Appellants all sought relief through the program. After having applied, some of them received a letter granting benefits, others a form letter denying benefits. All appealed. Some were granted an increase in benefits, others were denied any additional relief.
Appellants' suit was dismissed by the district judge on jurisdictional grounds, although the judge alternatively concluded the regulations satisfied the statute.
It should be noted at the outset that Appellants make no claim that they are entitled statutorily to any specific amount of payments in response to their Stafford Act claims. Nor is it asserted that constitutional due process is governing because it is not claimed that Appellants have a property interest. Their primary contention is rather that FEMA inadequately complied with its statutory obligation to publish regulations that would, inter alia , describe the criteria the agency...
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