MALECHE v. Solis

• Decision Date: 11 March 2010
• Docket Number: Civil Action No. H-09-0988.
• Citation: 692 F. Supp.2d 679
• Parties: Vincent MALECHE, Plaintiff, v. Hilda SOLIS, Secretary of the United States Department of Labor, Defendant.
• Court: U.S. District Court — Southern District of Texas

692 F. Supp.2d 679

Vincent MALECHE, Plaintiff, v. Hilda SOLIS, Secretary of the United States Department of Labor, Defendant.

Civil Action No. H-09-0988.

United States District Court, S.D. Texas, Houston Division.

March 11, 2010.

Vincent Maleche, Friendswood, TX, pro se.

Nancy Cross Leonard, Office of U.S. Attorney, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Plaintiff, Vincent Maleche, brings this action pro se against defendant, Hilda Solis, Secretary of the United States Department of Labor (DOL), for denial of Disaster Unemployment Assistance (DUA) benefits and discrimination in violation of the Stafford Act, 42 U.S.C. §§ 5121 et seq., for a period associated with Hurricane Ike, i.e., September through November of 2008. Plaintiff seeks an order directing defendant to pay him DUA benefits and voiding DOL Guidelines. Pending before the court is Defendants' Motion for Summary Judgment (Docket Entry No. 28). For the reasons explained below the defendant's motion for summary judgment will be granted and this action will be dismissed.¹

I. Undisputed Facts

Plaintiff resides in Friendswood, Galveston County, Texas, and as of April 2, 2009, had been self-employed for over ten years.² On September 12, 2008, Hurricane Ike struck Texas, and President George W. Bush declared Galveston County a disaster area.³ On or about September 14, 2008, plaintiff applied for Disaster Unemployment Assistance (DUA) benefits.⁴ On October 6, 2008, the Texas Workforce Commission (TWC) denied plaintiff's application for DUA benefits upon finding that plaintiff was not eligible to receive them because his last job separation occurred before the date of the disaster, and because plaintiff failed to provide evidence that he would have started to work in the affected area had the disaster not prevented him from doing so.⁵ On October 9, 2008, plaintiff appealed the TWC's denial of his application for DUA benefits to the TWC's Appeal Tribunal (AT).⁶ On December 3, 2008, the AT conducted a telephone hearing on plaintiff's appeal, and on December 5, 2008, affirmed the TWC's denial of plaintiff's application for DUA benefits.⁷ On or about December 26, 2008, plaintiff attempted to appeal the AT's decision.⁸ On January 14, 2009, the Regional Administrator for the United States Department of Labor (DOL) wrote to plaintiff informing him that his attempt to appeal the AT's decision was untimely.⁹ On or about February 2, 2009, plaintiff wrote to United States Senator Kay Bailey Hutchinson asking for assistance with his claim for DUA benefits.¹⁰ On February 20, 2009, the DOL's Regional Administrator reviewed the AT's decision pursuant to his own motion and concluded that the AT's decision that plaintiff was not eligible for benefits should be affirmed because plaintiff was neither able to nor available for work during the disaster period as required by 20 C.F.R. § 625.¹¹ On April 2, 2009, plaintiff filed this action seeking judicial review of the denial of his application for DUA benefits.¹²

II. Standard of Review

Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed.R.Civ.P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party moving for summary judgment "must `demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc), (quoting Celotex, 106 S.Ct. at 2553-2554, 106 S.Ct. 2548). If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S.Ct. at 2553-2554, 106 S.Ct. 2548). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when ... both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.

III. Analysis

Plaintiff contends that the defendant wrongfully denied his claim for DUA benefits, and that in so doing the defendant discriminated against him on the basis of his economic status, his successfulness, and his inability to perform manual labor. Defendant contends that she is entitled to summary judgment because plaintiff's own submissions establish that he was not eligible to receive DUA benefits, and because plaintiff has failed to adduce evidence showing that the denial of his application for benefits was discriminatory. For the reasons explained below, the court concludes that defendant's motion for summary judgment should be granted because the court lacks subject matter jurisdiction to review the defendant's determination that plaintiff was not eligible to receive DUA benefits, and because plaintiff has failed to present any evidence from which a reasonable fact-finder could conclude that the defendant's denial of his application for DUA benefits was motivated by discriminatory animus.

A. Applicable Law

The federal government provides disaster relief under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121 et seq. (Stafford Act), and regulations promulgated thereunder. See 20 C.F.R. § 625. The Stafford Act is triggered when the Governor of the affected state asks the President to declare that a "major disaster exists" and the President so declares. See 42 U.S.C. § 5122(2) (defining major disaster by reference to presidential determination); 42 U.S.C. § 5170 ("All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State."); and 44 C.F.R. § 206.38(a) ("The Governor's request for a major disaster declaration may result in either a Presidential declaration of a major disaster or an emergency, or denial of the Governor's request."). Such a request must be "based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary." 42 U.S.C. § 5170. The Stafford Act allows the President to "prescribe such rules and regulations as may be necessary and proper to carry out the provisions of ... the Act, and to act, either directly or through such Federal agency as the President may designate." 42 U.S.C. § 5164. The Stafford Act also includes a non-discrimination provision which states:

The President shall issue, and may alter and amend, such regulations as may be necessary for the guidance of personnel carrying out Federal assistance functions at the site of a major disaster or emergency. Such regulations shall include provisions for insuring that the distribution of supplies, the processing of applications, and other relief and assistance activities shall be accomplished in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.

42 U.S.C. § 5151(a). See also St. Tammany Parish v. Federal Emergency Management Agency, 556 F.3d 307, 310 (5th Cir. 2009).

Plaintiff's application for benefits concerns the DUA program administered by the TWC under the supervision of the United States Department of Labor (DOL) pursuant to 42 U.S.C. § 5177(a).¹³ In pertinent part that statute provides:

(a) Benefit assistance

The President is authorized to provide to any individual unemployed as a result of a major disaster such benefit assistance as he deems appropriate while such individual is unemployed for the weeks of such unemployment with respect to which the individual is not entitled to any other unemployment compensation (as that term is defined in section 85(b) of Title 26) or waiting period credit. Such assistance as the President shall provide shall be available to an individual as long as the individual's unemployment caused by the major disaster continues or until the individual is reemployed in a suitable position, but no longer than 26 weeks after the major disaster is declared. Such assistance for a week of unemployment shall not exceed the maximum weekly amount authorized under the unemployment compensation law of the State in which the disaster occurred. The President is directed to provide such assistance through agreements with States which, in his judgment, have an adequate system for administering such assistance through existing State agencies.

42 U.S.C. § 5177(a).

The eligibility requirements for DUA benefits on which the defendant relied to deny the plaintiff's application for DUA benefits are set forth at 20 C.F.R. § 625.4:

An individual shall be eligible to receive a payment of DUA with respect to a week of unemployment, in accordance with the provisions of the Act and this part if:

(a) That week begins during a Disaster Assistance Period;

(b) The applicable State for the individual has entered into an

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