McWaters v. Federal Emergency Management Agency, No. CIV.A.05-5488.

• Citation: 408 F.Supp.2d 221
• Decision Date: 12 December 2005
• Docket Number: No. CIV.A.05-5488.
• Parties: Beatrice B. MCWATERS, et al. v. FEDERAL EMERGENCY MANAGEMENT AGENCY, et al.
• Court: U.S. District Court — Eastern District of Louisiana

408 F.Supp.2d 221

Beatrice B. MCWATERS, et al. v. FEDERAL EMERGENCY MANAGEMENT AGENCY, et al.

No. CIV.A.05-5488.

United States District Court, E.D. Louisiana.

December 12, 2005.

Opinion Modified January 12, 2006.

COPYRIGHT MATERIAL OMITTED

John K. Pierre, Attorney at Law, Baton Rouge, LA, Daniel Lawrence Greenberg, Howard Owen Godnick, Michael Samuel Chernis, Sena Hae Won Kim-Reuter, Schulte, Roth & Zabel, New York City, John C. Brittain, Lawyers Committee for Civil Rights Under Law, Washington, DC, for Beatrice B. McWaters, et al.

Michael Sitcov, W. Scott Simpson U.S. Department of Justice Civil Division, Washington, DC, for Federal Emergency Management Agency, et al.

ORDER AND REASONS

DUVAL, District Judge.

Before the Court is Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Rec.Doc. No. 22) and November 28, 2005 Motion for Temporary Restraining Order and Preliminary Injunction (Rec.Doc. No. 26). After review of the pleadings and memoranda, as well as having held a hearing on the Motion on December 9, 2005, the Court GRANTS in part and DENIES in part both Motions.¹

Facts and Procedural History

On August 29, 2005 at around 6:10 a.m. Hurricane Katrina devastated the Gulf Coast of the United States. Striking in the early morning, Hurricane Katrina initially made landfall in southeastern Louisiana before moving across Mississippi and Alabama, leaving a swath of destruction in excess of 250 miles. As a result of the storm, there were three significant separate levee breaches in New Orleans and the surrounding area, submerging up to 80% of the greater metropolitan in water as deep as twenty feet. This water did not recede completely for several weeks thereafter, and a majority of the homes and structures in Orleans Parish and the parishes surrounding it were destroyed or washed away. Mississippi fared no better, with approximately 90% of the buildings along Mississippi's Gulf Coast being wiped out by a storm surge believed to be as high as thirty feet. By 11:00a.m. Katrina's eastern side had passed over Mobile, Alabama, submerging large sections of that city under water as well.

As a result of the storm and the ensuing floods, many people, especially those in the city of New Orleans, were required to evacuate their homes, some literally swimming to safety. Most of those who, for a variety of reasons (mainly a lack of resources) failed to evacuate prior to the storm were either rescued or removed via a combination of local, state, and government enforcement officials dispatched from all of the country, including the National Guard. Most of these rescued citizens were placed on buses or airplanes out of New Orleans and bound for shelters, hotels, and motels in various parts of the country, with most not knowing their final destinations. Parts of the city remained flooded for weeks, and citizens were forbidden from returning by local and state officials working in connection with the federal government. Over 1,200 Americans died, with over 1,000 of these deaths in Louisiana alone, many from drowning. For those who did get out, the vast majority of their homes were destroyed or rendered uninhabitable or inaccessible as a direct result of the storm, and in some cases residential areas remained closed to homeowners for over three months.²

Notably, more than 90,000 people in the affected areas had incomes of less than $10,000 per year. In Orleans Parish alone more than 40% of children affected by Katrina lived in households with incomes below the federal poverty line. According to the Center on Budget and Policy Priorities, of the 5.8 million individuals who lived in those states struck hardest by Katrina, over one million lived in poverty prior to the storm.³ In New Orleans, 28% of the city's residents were living in poverty prior to Katrina, and those who were poor commonly lacked their own means of transport.⁴ For instance, 65% of poor elderly households in New Orleans did not have a vehicle, "making it more difficult for them to escape the storm and its effects."⁵ About one of every three people who lived in areas hit hardest by Katrina were African-American; in contrast, one of every eight people in the nation is African-American.⁶ More than one in three black households in New Orleans (35%), and nearly three in five poor black households (59%) lacked a vehicle.⁷

As a result of the destruction, evacuees were dispersed to forty-five states, with more than 250,000 people ending up in shelters, most with nothing left. Others were placed by the Red Cross into its "Direct Payment Hotel/Motel Program." This program allowed evacuees with few resources to stay in hotels and motels paid for by the Red Cross until such time as evacuees were able to find more permanent housing. On October 24, 2005 the Federal Emergency Management Agency ("FEMA") took over the hotel/motel program and it became known as the "Short-Term Lodging Program." FEMA is the federal agency responsible for providing disaster victims with temporary housing assistance, either in the form of financial assistance to pay for rental housing, or a trailer or mobile home. FEMA's obligations arise pursuant to the Disaster Relief and Emergency Assistance Act and the regulations promulgated thereunder via the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"), 42 U.S.C. § 5121 et seq.

Notably, the Short-Term Lodging Program is separate from the other types of assistance, including Temporary Housing Assistance as offered by FEMA under its governing statute. Participation in the Short-Term Lodging Program (referred to as a § 403 program under the Stafford Act) does not count against the $26,200 in Temporary Housing Assistance (§ 408), also provided to eligible individuals under the Act.

On November 15, 2005 FEMA announced that as of the close of business on November 30, 2005, it would cease funding the Short-Term Lodging Program by November 30, 2005. Subsequently this deadline was extended by FEMA directive to December 15, 2005, or January 7, 2006, with extensions being granted on a state-by state basis and depending upon the number of evacuees in hotels or motels in each state. Only those ten states that were currently housing the greatest number of evacuees were eligible to apply for the January 7, 2005 extension. As of December 9, 2005, FEMA again modified this date with a letter stating that those individuals staying in hotels in any State that have yet to receive a decision on their application for individual assistance by December 9, 2005 or have been approved but not yet received that assistance would have their current hotel subsidy extended to January 7, 2006. FEMA also informed the Court that the states of Louisiana, Mississippi, and Texas have applied for and been granted the January 7, 2005 state extension.

Plaintiffs commenced this putative class action on November 10, 2005 by filing a Class Action Complaint (Rec.Doc. No. 1) on behalf of thirteen named plaintiffs, all of whose homes were destroyed due to Katrina and all of whom have applied for and, as of the date of filing, had failed to receive, any disaster assistance ("Assistance") from FEMA. Plaintiffs' subsequently amended their Complaint (See Rec. Doc. Nos. 21 and 29). The putative class consists of all persons who (a) on August 29, 2005, resided in Louisiana, Mississippi, or Alabama, in areas declared to be Federal Disaster Areas; (b) were displaced from their pre-disaster primary residences or whose pre-disaster primary residences have been rendered uninhabitable as a result of Hurricane Katrina; and (c) have applied for or will apply for assistance under the Stafford Act, and (i) have not yet received Assistance, (ii) have unlawfully been denied Assistance, (iii) have not been adequately informed about the scope and conditions of the available Assistance, and/or (iv) have been unable to apply for Assistance due to a lack of information or accessibility to FEMA.⁸ Plaintiffs allege, inter alia, seventeen causes of action, including statutory and constitutionally based claims, all stemming from FEMA's response (or lack thereof) in the aftermath of Hurricane Katrina. Plaintiffs seek only declaratory and injunctive relief, including a Temporary Restraining Order mandating that defendants abide by the requirements of the Stafford Act and the Due Process Clause of the Fifth Amendment and provide Assistance to eligible applicants. Plaintiffs also request an injunction against FEMA's imminent termination of the Short-Term Lodging Program on the grounds that such a termination violates the Due Process Clause and that pursuant to the Stafford Act and the Administrative Procedure Act ("APA"), FEMA's failure to provide and unreasonable delay of Housing Assistance is unlawful. See 5 U.S.C. § 553, § 706(1), § 706(2)(A), § 706(2)(C); 42 U.S.C. § 5165c. Plaintiffs aver that they are eligible for Assistance under the Stafford Act because they are persons who are "displaced from their pre-disaster primary residences or whose pre-disaster primary residences are rendered uninhabitable as a result of damage caused by a major disaster." 42 U.S.C. § 5174(b). Besides challenging FEMA's authority to unilaterally terminate the Short-Term Lodging Program, the Complaint itself alleges several violations of the Stafford Act made by FEMA in conjunction with its Katrina relief efforts. Plaintiffs challenge the so-called "Shared Household Rule" whereby many disaster victims have been denied Assistance from FEMA on the basis that they lived or shared the same address or phone number of another applicant.⁹ Plaintiffs allege others were denied Assistance on the basis that they were told to apply for Small Business Administration (SBA) Loan and that failure to do so would prevent them from receiving any Temporary Housing Assistance, a clear violation § 5174(a)(2) of the Stafford Act. Plaintiffs also argue that many who did receive the preliminary payment...