Barbosa v. U.S. Dep't of Homeland Sec.

• Decision Date: 06 October 2017
• Docket Number: Case No. 1:16–cv–01843 (APM)
• Citation: 278 F.Supp.3d 325
• Parties: Daniel BARBOSA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

278 F.Supp.3d 325

Daniel BARBOSA, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Case No. 1:16–cv–01843 (APM)

United States District Court, District of Columbia.

Signed October 6, 2017

Jerome William Wesevich, Texas Riogrande Legal Aid, El Paso, TX, for Plaintiffs.

Jean–Michel Voltaire, Julie Shana Saltman, Kenneth Elliot Sealls, Robin Frances Thurston, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District JudgePlaintiffs seek reconsideration of the court's dismissal of Count IV of their Complaint, which alleged that the Federal Emergency Management Agency ("FEMA") violated the Administrative Procedure Act, specifically 5 U.S.C. § 552(a)(1), by using unpublished rules to evaluate Plaintiffs' applications for disaster relief. See Pls.' Mot. for Recons., ECF No. 18 [hereinafter Pl.'s Mot.]; Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 91–95.¹ In its Memorandum Opinion dismissing the Complaint, the court tersely explained its dismissal of Count IV as follows: "Given that Count IV depends on Plaintiffs stating a claim in Counts I, II, or III, Count IV necessarily fails to state a claim, as well." Barbosa v. U.S. Dep't of Homeland Sec. , No. 16-1843, 263 F.Supp.3d 207, 226 n. 7, 2017 WL 2958606, at *12 n.7 (D.D.C. July 11, 2017). Plaintiffs now assert that the court was wrong to dismiss Count IV on that basis, arguing that "Count IV is fact-based and conceptually distinct from the legal issues decided by the Court in [its Memorandum Opinion], and cannot be dismissed for the same reasons that this Court relied upon to dismiss Plaintiffs' other claims." Pls.' Mot. at 1. The court should have provided the parties a more fulsome explanation for why it dismissed Count IV and now takes the opportunity to do so.

I

In Counts I, II, and III, Plaintiffs claimed that FEMA violated three separate statutory mandates by failing to adopt sufficiently detailed regulations concerning the agency's operation of an emergency disaster relief program known as the Individuals and Households Program. See Barbosa , 263 F.Supp.3d at 212–14, 2017 WL 2958606, at *2–3. The court's primary reason for dismissing all three counts was that Defendants were immune from suit under the "discretionary function exception" of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the "Stafford Act"), 42 U.S.C. §§ 5121 – 5206, the statute that governs the provision of emergency disaster relief, including through the Individuals and Households Program. Id. at 215–24, 2017 WL 2958606 at *5–10. The Stafford Act provides that the federal government "shall not be liable for any claim based 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. The court applied the two-part discretionary function test the Supreme Court created in United States v. Gaubert and found that (1) FEMA's determination of which rules to adopt through formal notice-and-comment rulemaking is a discretionary act, and (2) such decision-making is of the type that Congress intended to shield from review under the Stafford Act's discretionary function exception. See Barbosa , 263 F.Supp.3d at 215–24, 2017 WL 2958606, at *5–10 (citing 499 U.S. 315, 322–23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) ). The court thus dismissed Counts I, II, and III, for lack of subject matter jurisdiction. Id., at 223–24, 2017 WL 2958606 at *10.

Count IV advanced a different type of claim than that stated in Count I, II, or III. Whereas the first three counts alleged that FEMA had not promulgated regulations as required by Congress, Count IV challenged FEMA's use of unpublished rules and policies to decide Plaintiffs' applications for disaster relief. Compare Compl. ¶¶ 81–90 (Counts I–III), with id. ¶ 93 (Count IV). That practice, Plaintiffs alleged, ran afoul of the Administrative Procedure Act's ("APA") requirement that "[f]ederal agencies must publish in the federal register all of their substantive and procedural rules and policy statements." Id. ¶ 91 (citing 5 U.S.C. §§ 552(a)(1)(B)–(E) ). As relief for that violation, Plaintiffs asked the court to enjoin FEMA from using any unpublished rules and to reevaluate Plaintiffs' relief applications based only on the published rules that existed at the time. Id. ¶ 96.

II

The court concludes that it properly dismissed Count IV of the Complaint because the Stafford Act's discretionary function exception shields the agency actions that are the subject of that count from judicial review. Count IV of the Complaint requires the court to determine whether FEMA complied with the APA's requirement that certain types of rules and policies must be published in the Federal Register. Two circuit courts have held, however, that the Stafford Act's discretionary function exception bars judicial review of FEMA's decision-making concerning the applicability of the APA's procedural requirements to FEMA's rules and policies. See Rosas v. Brock , 826 F.2d 1004, 1006 (11th Cir. 1987) ; St. Tammany Parish ex rel. Davis v. FEMA , 556 F.3d 307, 313, 326 n.13 (5th Cir. 2009). And, while the D.C. Circuit has not addressed the Stafford Act's discretionary function exception's application to APA challenges, it has held in an analogous context that the discretionary function exception contained in the Federal Tort Claims Act precludes tort claims alleging violations of the APA's procedural requirements. Jayvee Brand, Inc. v. United States , 721 F.2d 385, 387 (D.C. Cir. 1983). Applying those decisions here, the court lacks subject matter jurisdiction as to Count IV.

Both the Eleventh Circuit and the Fifth Circuit have held that the Stafford Act's discretionary function exception precludes judicial review of FEMA's compliance with the APA's notice-and-comment rulemaking provisions. In Rosas v. Brock , the plaintiff, who was denied disaster unemployment benefits, brought a class-action suit challenging the definition of "unemployed worker" that the agency² had used to evaluate his disaster relief claims. See Rosas , 826 F.2d at 1006–07. The plaintiff alleged, among other things, that the agency had wrongfully denied his claim because it had adopted and applied its definition of "unemployed worker" without subjecting the definition to notice-and-comment rulemaking. See id . at 1009. The agency responded that its decision to adopt a particular definition of "unemployed worker" was exempt from the APA's notice-and-comment requirement because it was an interpretive, as opposed to substantive, rule. See id . The Eleventh Circuit, like the district court, declined to reach the merits of the parties' dispute—whether the agency failed to adhere to the APA's formal rulemaking requirements—because "the government's determination of whether its definition of ‘unemployed worker’ is a substantive or interpretive rule involves the same sort of discretion and implicates the same policy considerations that exempt the decision [of selecting the term's definition] from judicial review." Id . The court explained that "if a discretionary decision," i.e., the adoption of a definition, "is made without following mandated procedures, it is an abuse of discretion and, as such, protected from judicial review." See id. at 1009–10. In other words, the court held that the Stafford Act's discretionary function exception precluded review of the agency's discretionary decision not to follow formal rulemaking procedures when defining "unemployed worker." The Eleventh Circuit, therefore, affirmed dismissal of the claimant's APA challenge for lack of subject matter jurisdiction. The Fifth Circuit reached a similar decision in St. Tammany Parish ex rel.Davis v. FEMA . There, the plaintiff challenged FEMA's refusal to approve funding for debris removal in the aftermath of Hurricane Katrina and, as pertinent here, argued that "FEMA's refusal to approve funding constituted a substantive rule change about which FEMA never provided the public with notice and an opportunity to comment." 556 F.3d at 313. Citing Rosas , the Fifth Circuit affirmed the district court and held that the discretionary function exception barred review of the plaintiff's claim that FEMA had violated the APA's notice-and-comment requirement. Id. at 326 n.13 ("Because § 5148 applies, it bars any claim—whether alleged under the [Federal Tort Claims Act] or APA."). Taken together, Rosas and St. Tammany Parish stand for the proposition that the Stafford Act's discretionary function exception forecloses claims challenging FEMA actions that implicate both procedural and substantive considerations under the APA.³

Although the D.C. Circuit has not addressed the Stafford Act's discretionary function exception in the context of an APA challenge, it has addressed the scope of the exception in an analogous context. In Jayvee Brand, Inc. v. United States , the plaintiffs brought claims under the Federal Tort Claims Act ("FTCA"), contesting a Consumer Product Safety Commission decision to ban the use of a certain chemical used to treat fabric. 721 F.2d at 387. The plaintiffs maintained that the Commission's ban was unlawful because the agency did not follow procedures set forth in the federal Food, Drug, and Cosmetic Act, which required the Commission to provide notice of the proposed ban in the Federal Register and an opportunity for public comment. See id . The Circuit held that the plaintiffs' FTCA claims—which it described as an "attack ... on the procedures by which the ... ban was formulated and adopted"—were barred by the FTCA's discretionary function exception because, even if the Commission failed to follow the procedures laid out in the statute, that failure was "an abuse in the exercise of policy making, and hence an abuse of discretion shielded from liability"...