St. Tammany Parish ex rel. Davis v. Fema

• Citation: 556 F.3d 307
• Decision Date: 22 January 2009
• Docket Number: No. 08-30070.,08-30070.
• Parties: ST. TAMMANY PARISH, by and through its President, Kevin DAVIS, Plaintiff-Appellant, v. FEDERAL EMERGENCY MANAGEMENT AGENCY; Department of Homeland Security, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

556 F.3d 307

ST. TAMMANY PARISH, by and through its President, Kevin DAVIS, Plaintiff-Appellant, v. FEDERAL EMERGENCY MANAGEMENT AGENCY; Department of Homeland Security, Defendants-Appellees.

No. 08-30070.

United States Court of Appeals, Fifth Circuit.

January 22, 2009.

William Christopher Beary, John L. Fontenot (argued), Orrill Cordell & Beary, New Orleans, LA, for Plaintiff-Appellant.

Sharon Denise Smith (argued), Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, DeMOSS and PRADO, Circuit Judges.

KING, Circuit Judge:

We are asked to determine whether the discretionary function exception of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5148, bars a suit based on the federal government's decision not to approve funding for debris removal in the aftermath of Hurricane Katrina. St. Tammany Parish brings this lawsuit against the Federal Emergency Management Agency and the Department of Homeland Security because they denied funding for the removal of sediment deposited in the canals within St. Tammany Parish's Coin du Lestin community. The district court dismissed the case for lack of subject matter jurisdiction after concluding that the United States has not waived sovereign immunity for its agencies' discretionary funding decisions. We agree that the agencies' decision not to fund the removal of the sediment was discretionary and therefore affirm.

I. FACTUAL, REGULATORY, AND PROCEDURAL BACKGROUND

A. Factual History and Relevant Regulations

On August 29, 2005, Hurricane Katrina made landfall along Louisiana's Gulf of Mexico coast. As a result, President George W. Bush declared that a major disaster existed in the State of Louisiana and initiated the federal government's involvement in the hurricane recovery effort.¹ See Notice of the Presidential Declaration of a Major Disaster for the State of Louisiana, 70 Fed.Reg. 53,803-01 (Sept. 12, 2005). The President exercised his authority to declare major disaster areas pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"), 42 U.S.C. §§ 5121-5208. See 42 U.S.C. § 5122(2) (defining major disaster by reference to presidential determination); see also 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.").

After the President declares a major disaster, the Stafford Act states that "[f]ederal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from [the] major disaster." 42 U.S.C. § 5170b(a). It permits federal agencies to assist in "debris removal" where it is "essential to saving lives and protecting and preserving property or public health and safety." Id. § 5170b(a)(3)(A). Section 5173 of the Stafford Act likewise states that "[t]he President, whenever he determines it to be in the public interest, is authorized ... to make grants to any State or local government ... for the purpose of removing debris ... resulting from a major disaster from publicly or privately owned lands and waters." Id. § 5173(a)(2).

The Stafford Act authorizes the President to delegate his authority under the Act to a federal agency. See id. § 5164. The President exercised this option and delegated most of his authority to the Federal Emergency Management Agency ("FEMA"), which is now part of the Department of Homeland Security ("DHS") (collectively, "defendants" or the "government"). Exec. Order No. 12,673: Delegation of Disaster Relief and Emergency Assistance Functions, 54 Fed.Reg. 12,571, § 1 (Mar. 23, 1989). In turn, FEMA promulgated certain regulations pursuant to the Stafford Act establishing the qualifications and procedures related to federal assistance for debris removal. See 44 C.F.R. § 206.224. The implementing regulations establish that debris removal must be in the "public interest" in order to be eligible for funding. Id. § 206.224(a). Debris removal is in the public interest when it is, inter alia, necessary to "[e]liminate immediate threats to life, public health, and safety." Id. § 206.224(a)(1). "Upon determination that debris removal is in the public interest, the Regional Director [, a FEMA official,] may provide assistance for the removal of debris and wreckage from publicly and privately owned lands and waters." Id. § 206.224(a).

Under the regulations, a specific project must be documented in a Project Worksheet, FEMA Form 90-91 ("PW"). See id. § 206.202(d). The Regional Director, or a designee, is charged with "review[ing] and sign[ing] an approval of work and costs on a Project Worksheet," id. § 206.201(j), and will then "obligate funds to the Grantee based on the approved Project Worksheet," id. § 206.202(e)(1). See also id. § 206.201(i)(1) (authorizing FEMA to "approve a scope of eligible work and an itemized cost estimate before funding a project").

The President's August 29, 2005 declaration that a major disaster existed in Louisiana as a result of the damage caused by Hurricane Katrina in certain areas authorized FEMA "to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses." 70 Fed.Reg. 53,803-01, at 53,803. The declaration also authorized FEMA "to provide ... assistance for debris removal." Id. The President specifically identified St. Tammany Parish ("plaintiff" or the "Parish") as a municipality eligible for such assistance. Id.

Pursuant to the Stafford Act and its accompanying regulations, FEMA issued Recovery Policy 9523.13 to help facilitate debris removal from private property after Hurricane Katrina. See FEMA, Debris Removal from Private Property: Recovery Policy 9523.13 (Oct. 23, 2005), amending and replacing Recovery Policy 9523.13 (Sept. 7, 2005). Recovery Policy 9523.13 provides that:

Hurricanes Katrina and Rita in some areas created catastrophic, widespread destruction resulting in vast quantities of debris which may require state or local government to enter private property to remove it in order to prevent disease and other immediate public health and safety threats. In these situations, debris removal from private property may be in the public interest and thus may be eligible for reimbursement, when the unconditional authorization for debris removal and indemnification requirements established by Sections 403 and 407 of the Stafford Act are met.

Recovery Policy 9523.13, at § 6(C). It offers guidance for reimbursing "state, county, and municipal governments for costs incurred in debris removal from private property." Id. at § 7. Section 7 of the Policy provides that FEMA will work with local governments to determine areas in which such debris removal "is in the `public interest' under 44 C.F.R. § 206.224 and thus is eligible for FEMA reimbursement," § 7(A); requires the local government to submit a written request seeking reimbursement, see § 7(C); and grants FEMA the authority to approve or disapprove each request, see § 7(H). To clarify Recovery Policy 9523.13's application, Nancy Ward, FEMA's Director of the Recovery Area Command, issued a memorandum to FEMA's field offices that declared that "it is in the public interest to remove debris from private property because an immediate threat to public health and safety exists in" the Parish, thus satisfying § 7(A) of the Policy. See Memorandum from Nancy Ward, Recovery Area Command Director, to FEMA Joint Field Offices (Sept. 10, 2005) (the "Ward Memorandum").

On September 12, 2005, the Parish filed a "Request for Public Assistance" for debris removal from public and private property within its jurisdiction. Part of the request sought debris removal from private canals in Coin du Lestin. Coin du Lestin, a private community consisting of approximately 250 residential homes, sits in the eastern part of the Parish. Coin du Lestin utilizes an above-ground drainage system that consists of drainage ditches, drains, and culverts. The drainage system is connected to a number of canals, which, in turn, drain into Bayou Bonfouca and then Lake Pontchartrain. The Coin du Lestin canals were navigable prior to Hurricane Katrina, reaching a depth of at least ten feet. Hurricane-related flooding, however, deposited construction and demolition ("C&D") materials, a boat, a submerged vehicle, as well as silt, mud, and vegetative materials, into the canals. Citing a potential flood hazard due to clogging in the Coin du Lestin canals, the Parish requested funding for removal of C&D debris and for the dredging of the canals to a depth of eight feet from bank to bank. The proposed scope of work included the removal of approximately 500,000 cubic yards ("CY") of debris.

In response, FEMA issued PW 2981, authorizing some, but not all, of the Parish's requested funding for debris removal from the Coin du Lestin canals. See FEMA, Project Worksheet Report 2981 (Feb. 6, 2006). According to PW 2981, FEMA debris specialists conducted an assessment of the canals on February 2, 2006, "to estimate the amount of debris in the canals that posed an immediate threat to improved property, public health and safety." Id. at 14. FEMA specialists determined that:

[H]igh winds and storm surge associated with Hurricane Katrina ... caused an estimated 130 CY of C&D debris and one (1) recreational boat to be deposited in the St. Tammany Coin [du]Lestin canals. The canals serve as access to the surrounding area and are within close proximity to parish residences; therefore, the debris is considered an immediate threat to public health and safety. Also deposited in the canals were large quantities of marsh grass.

Id. at 2. As a result of this assessment, FEMA authorized funding for removal of...