Lockett v. Federal Emergency Management Agency

• Decision Date: 09 August 1993
• Docket Number: No. 93-1035-CIV.,93-1035-CIV.
• Citation: 836 F. Supp. 847
• Court: U.S. District Court — Southern District of Florida
• Parties: Rita Marie LOCKETT, Clemene Pierre, Bertha Cross, and Ralph Leamy, on behalf of Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, James Lee Witt, Director Federal Emergency Management Agency; Major Phil May, Regional Director, Federal Emergency Management Agency and Federal Coordinating Officer; and Paul W. Fay, Jr., Individual Assistance Officer and their successors in office, Defendants.

836 F. Supp. 847

Rita Marie LOCKETT, Clemene Pierre, Bertha Cross, and Ralph Leamy, on behalf of Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, James Lee Witt, Director Federal Emergency Management Agency; Major Phil May, Regional Director, Federal Emergency Management Agency and Federal Coordinating Officer; and Paul W. Fay, Jr., Individual Assistance Officer and their successors in office, Defendants.

No. 93-1035-CIV.

United States District Court, S.D. Florida.

August 9, 1993.

COPYRIGHT MATERIAL OMITTED

Terry A. Coble, Charles F. Elsesser, Legal Services of Greater Miami, Inc., Miami, FL, for plaintiffs.

Frank W. Hunger, Asst. Atty. Gen., Kendall Coffey, U.S. Atty., Wendy A. Jacobus, Asst. U.S. Atty., Miami, FL, Felix V. Baxter, Peter Robbins, Attys., Dept. of Justice, Washington, DC, for defendants.

ORDER ON MOTION TO DISMISS

ATKINS, Senior District Judge:

THIS CAUSE comes before the Court upon defendants' Motion to Dismiss (d.e. 16). The Court must determine whether the federal courts have jurisdiction to review the Federal Emergency Management Agency's administrative temporary housing eligibility decisions under 42 U.S.C. § 5174 (1993) of the Stafford Disaster Relief Act of 1974, 42 U.S.C. § 5121 et seq. (Stafford Act or Disaster Relief Act).

I. BACKGROUND

On August 24, 1992, Hurricane Andrew swept through the southern tip of Florida, cutting a 30 mile-wide path of destruction. In its wake, Andrew destroyed many residential neighborhoods, leaving thousands of people homeless. Consequently, many of these people were forced to evacuate their homes and ask the government for shelter.

President Bush declared certain South Florida regions as disaster areas, thus invoking the provisions of the Disaster Relief Act. This decision allowed the hurricane victims to receive all such relief thereunder, including temporary housing assistance benefits under 42 U.S.C. § 5174.

Named plaintiffs are victims of Hurricane Andrew whose homes were destroyed by the hurricane. Plaintiffs challenge the defendants' systematic failure to provide Hurricane Andrew victims with the relief they are allegedly entitled under the Stafford Act.¹ Plaintiffs contend that defendants (1) failed to provide them with actual housing, as prescribed under 42 U.S.C. § 5174(a), (2) failed to notify them of all types of housing assistance available, as required under 42 U.S.C. § 5174(e), and (3) implemented the statutes and regulations in an arbitrary and illegal manner by denying assistance based on a finding that another individual in the pre-disaster household received assistance. Plaintiffs seek declaratory and injunctive relief, on behalf of themselves and all others similarly situated, requiring defendants to abide by the requirements of the Stafford Act, its implementing regulations and the Due Process Clause of the Fifth Amendment to the United States Constitution.²

II. INDIVIDUAL PLAINTIFFS

All four named plaintiffs are residents of Dade County, Florida, whose homes were destroyed by Hurricane Andrew. First, defendants denied plaintiff Rita Marie Lockett's (Lockett) application for federal disaster housing assistance based on a finding that another person in her pre-disaster household received insurance payments, even though Lockett did not receive any portion of the payments. Lockett is currently living with her children in a one room travel trailer. Next, plaintiff Clemene Pierre (Pierre) applied for federal disaster housing assistance and was found eligible to receive assistance. However, FEMA failed to provide her with housing. Pierre is currently living with her children in a one-room, mobile home sublet. The third plaintiff, Bertha Cross (Cross), also applied for temporary housing assistance. FEMA found Cross eligible for benefits; however, during the post-hurricane time frame, she alleges that defendants refused to provide her with actual housing until after they received notice that the tent city in which she was living was due to close. Cross alleges that defendants are threatening her with dispossession of the mobile home because of her inability to repay the cash assistance she received. Finally, plaintiff Ralph Leamy (Leamy) applied for temporary housing assistance and FEMA determined him eligible for benefits. Leamy received cash assistance, but FEMA provided Leamy with actual housing only after he was hospitalized for a stress-related condition. FEMA is now seeking repayment of the monetary assistance previously given to him.

III. PROCEDURE

Plaintiffs filed this class-action suit against defendants, alleging that the policies and practices adopted by defendants have systematically prevented South Florida disaster victims from obtaining information and receiving housing assistance in the form of habitable dwellings as opposed to money payments. Plaintiffs assert that this has systematically precluded many low-income residents displaced by the hurricane from receiving any form of temporary housing assistance.³ In a nine count complaint, plaintiffs allege that FEMA violated provisions of the Stafford Act, FEMA statutory guidelines, Administrative Procedure Act directives and constitutional guarantees. FEMA moves to dismiss the counts based on (1) the Court's lack of subject matter jurisdiction over the statute-based claims because actions taken thereunder are immune as discretionary functions; (2) plaintiffs' failure to exhaust administrative remedies; (3) plaintiffs' lack of entitlement to discretionary housing assistance; and (4) plaintiffs' lack of standing to challenge FEMA's compliance with notice requirements.

IV. ANALYSIS

The Court must "begin with the strong presumption that Congress intends judicial review of administrative action." Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986); Rosas v. Brock, 826 F.2d 1004, 1007 (11th Cir.1987). The presumption may be surmounted if there is contrary congressional intent in specific statutory language or the legislative history. Block v. Community Nutrition Institute, 467 U.S. 340, 344, 104 S.Ct. 2450, 2453, 81 L.Ed.2d 270 (1984); Rosas, 826 F.2d at 1007.

A. Judicial Review of Administrative Action

In the case sub judice, plaintiffs seek declaratory and injunctive relief from FEMA's decisions. Subject matter jurisdiction is present because it "arises under" the Stafford Act. 28 U.S.C. § 1331 (1982); see Choctaw Mfg. Co. v. United States, 761 F.2d 609, 615 (11th Cir.1985). The Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq., grants plaintiffs' their right to have a federal court review these administrative decisions;⁴ however, review is only available if the administrative action is "final."⁵

1. Finality

Plaintiffs claim that FEMA cannot or will not grant the requested relief and any challenge at the administrative level would be fruitless. Therefore, they contend that there is no need to exhaust administrative remedies. See McCarthy v. Madigan, ___ U.S. ___, ___ - ___, 112 S.Ct. 1081, 1087-92, 117 L.Ed.2d 291 (1992). Also, plaintiffs maintain that exhaustion of administrative remedies is unnecessary because FEMA is clearly acting in violation of its authorizing statute. See Leedom v. Kyne, 358 U.S. 184, 188-91, 79 S.Ct. 180, 183-85, 3 L.Ed.2d 210 (1958); Skinner & Eddy Corp. v. U.S., 249 U.S. 557, 562-63, 39 S.Ct. 375, 377, 63 L.Ed. 772 (1919). On the other hand, FEMA claims that the decisions in question are not final because plaintiffs have not appealed their individual claims pursuant to 42 U.S.C. § 5189a (1993)⁶ and 44 C.F.R. § 206.101(m)(1) (1992).⁷ With respect to the cash-assistance rule, FEMA states that since the decision-maker on administrative appeal has authority to waive the rule, 44 C.F.R. § 206.101(g), finality has not been established.⁸ FEMA also contends that caselaw and statutory language preclude review of single-household rule determinations under 44 C.F.R. § 206.101(e)(2) because the decisionmaker has the discretion to decide whether "the size of the household requires that more than one residence be provided."⁹ Because exhaustion is necessary under the program to obtain final agency action, FEMA argues that the Supreme Court's recent decision in Darby v. Cisneros, ___ U.S. ___, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), is inapplicable.

Defendants maintain that plaintiffs are required to identify to this Court the specific section of 44 C.F.R. Part 206 which establishes that FEMA's initial decision to deny an application is other than final agency action. This is not true. This Court is free to impose an exhaustion requirement only if Congress has provided for such a condition. Darby, ___ U.S. at ___, 113 S.Ct. at 2543; see McCarthy, ___ U.S. at ___ - ___, 112 S.Ct. at 1087-92 (1992).

In Darby, the Supreme Court held that Section 10(c), 5 U.S.C. § 704, limits the "availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates." Id. ___ U.S. at ___, 113 S.Ct. at 2544 (emphasis added). Therefore, courts' authority and liberty to impose additional exhaustion requirements as a prerequisite to judicial review are statutorily curtailed, depending upon those prerequisites specifically provided in the statute or rule. Id. Agencies may avoid the finality of an initial administrative decision only if two conditions are met. First, an agency must adopt "a rule that an agency appeal be taken before judicial review is available, and, second, the agency must provide that the initial decision would be `inoperative' pending appeal. Otherwise, the initial decision becomes final and the aggrieved party is entitled to judicial review." Id. at ___, 113 S.Ct. at 2547 (emphasis added).

The appeal procedures adopted by FEMA at 44 C.F.R. § 206.101(m)(1) fulfill neither of the two above criteria. Under the provision, only certain applicants have the right to dispute particular adverse determination on assistance.¹⁰ Section...