Appeal Timeliness

Appeal Brief

Summary Paragraph

From October 23 through November 18, 2005, Hurricane Wilma caused damage throughout the City of Aventura (Applicant).  FEMA prepared Project Worksheet (PW) 7976 to address the Applicant’s request to remove derelict vessels from Maule Lake.  In the PW, FEMA stated that its review of the project did not address all federal, state, and local requirements and failure to comply with or obtain all appropriate environmental permits and clearances could jeopardize federal funding.  During closeout the Applicant failed to provide FEMA with the final disposal permit so FEMA was unable to verify the disposition of the derelict vessels (specifically whether the Applicant  deposited the vessels in a permitted landfill in accordance with applicable environmental laws and regulations).  Accordingly, FEMA deobligated $58,570.00 in funding on September 2, 2010.  The Applicant submitted its first appeal to the Grantee on November 5, 2010.  However, the Grantee did not forward the Applicant’s appeal to FEMA until April 27, 2016, approximately 65 months after receipt.  The Applicant’s first appeal stated that it complied with all known requirements and its efforts to obtain a permit or documentation to verify proper disposal were unsuccessful.  The Regional Administrator (RA) denied the appeal because it was untimely pursuant to 44 C.F.R. § 206.206(c).  The Applicant appeals the RA’s decision and argues that it did timely submit its appeal and requests FEMA respond to its first appeal.  The Grantee concurs and asks FEMA not hold the Applicant responsible for its mistake.

Authorities and Second Appeals

• Stafford Act § 423.
• 44 C.F.R. § 206.206(c)(1)-(2).
• Palisades Med. Ctr., FEMA-4086-DR-NJ, at 4.
• Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4.
• City of Lake Mary, FEMA-1539-DR-FL, at 4.
• St. Thomas Univ. FEMA-1609-DR-FL, at 3.

Headnotes

• The Stafford Act and 44 C.F.R. § 206.206(c) requires that applicants file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed, at which point the grantee must forward the appeal, along with a written recommendation, to the RA within 60 days. 
• Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the Applicant’s appeal rights lapse.
  • The Grantee submitted the Applicant’s first appeal to FEMA more than 65 months after receipt. Accordingly, the Grantee did not submit the Applicant’s first appeal within the 60-day timeframe pursuant to 44 C.F.R. § 206.206(c)(2).
  • Due to the Grantee’s failure to comply with 44 C.F.R. § 206.206(c), the Applicant’s appeal rights lapsed.

Appeal Letter

Appeal Analysis

Background

From October 23 through November 18, 2005, Hurricane Wilma caused damage throughout the City of Aventura, Florida (Applicant).  During the hurricane, several vessels were pulled from their moorings and deposited in the Applicant’s waterways.  The Applicant, along with the City of North Miami Beach, worked to remove the vessels.  FEMA prepared Project Worksheet (PW) 7976 Version 0 to document costs for the debris removal of derelict vessels from Maule Lake.  In the PW, FEMA indicated its review of the project did not address all federal, state, and local requirements and failure to comply with or obtain all appropriate environmental permits and clearances could jeopardize federal funding.  As reflected in PW Version 3, the Applicant did not provide FEMA with the final disposal permit during closeout.  FEMA determined it could not verify the disposition of the collected debris–specifically whether the Applicant deposited the vessels in a permitted landfill in accordance with environmental laws and regulations.  Accordingly, FEMA deobligated $58,570.00 in funding on September 2, 2010.  The Applicant was notified by the Grantee on October 1, 2010.

First Appeal

The Applicant appealed FEMA’s deobligation in a letter dated November 5, 2010 and explained that it partnered with the City of North Miami Beach (NMB) to remove the vessels.  NMB contracted the work out to Blue Water Marine Services, Inc. (Blue Water).  The Applicant attached an affidavit from Blue Water to evidence the legal removal and disposal of the vessels at a permitted disposal site, noting that Blue Water subcontracted the work to Superb Waste, Inc. (Superb Waste), and expressed that it did not know where the vessels were dumped.  The Applicant made several attempts to contact Superb Waste but was not able to speak to the owner and could not get any cooperation from the company.  The Applicant stated that it felt it disposed of the vessels properly, made a substantial effort to comply with FEMA regulations, and that it was highly unlikely that Superb Waste would have improperly disposed of the vessels.  The Florida Division of Emergency Management (Grantee) received the Applicant’s appeal on November 5, 2010.[1]  

On August 31, 2012, an attorney representing the Applicant sent a letter to the Grantee to inquire about the status of the appeal and noted that the attorney had tried to contact the Grantee several times and would like assistance in resolving the appeal.  The letter is stamped as received on September 2, 2012. 

The Grantee forwarded the Applicant’s appeal to FEMA on April 27, 2016.  The Grantee stated that it originally submitted the appeal to FEMA in “late 2010, [and a] follow up regarding the status of this appeal by the Grantee’s Appeals Officers in December 2015 reveal[ed] that FEMA [could not] locate the appeal.”[2]  The Grantee classified its letter as a re-submission of the originally timely filed appeal.  With regard to the Applicant’s appeal claims, the Grantee noted that FEMA deobligated funding because the Applicant could not provide disposal tickets from the landfills where the vessels were placed.  The Grantee described this as an improper method for FEMA to verify the vessels’ proper disposal, since FEMA policy only stated that an applicant must verify chain of custody, transport, and disposal of the vessel and did not mention disposal tickets.  The Grantee therefore argued that the affidavit submitted by the Applicant’s contractor was sufficient to show proper disposal.  In support thereof, the Grantee noted the affidavit was also sent to the Florida Fish and Wildlife Commission (FWC), and FEMA would need to show “a reasonable belief that the FWC [was] not fulfilling their Constitutionally delegated duties in order to assert that these vessels were not disposed of properly.”[3]

FEMA issued a Final Request for Information (RFI) on January 9, 2017, and requested documentation supporting the Grantee’s assertion that it originally submitted the Applicant’s appeal in 2010, as FEMA had no record of receiving it prior to 2016.  Neither the Applicant nor the Grantee responded to the RFI.

The FEMA Region IV Regional Administrator (RA) denied the appeal on April 26, 2017, because it was not submitted within the time limits required by Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c).  The RA noted that FEMA received the first appeal on April 27, 2016, more than five years after the deobligation occurred and approximately 65 months after the Applicant’s appeal was submitted to the Grantee.  While the Grantee claimed it previously submitted a first appeal to FEMA within the required timeframe, it did not offer any dates or documentation to support its claim.  The RA noted that FEMA gave the Applicant and Grantee an opportunity to provide documentation demonstrating the Grantee had previously sent the appeal, but neither the Applicant nor the Grantee responded to the RFI.

Second Appeal

In its second appeal dated May 5, 2017, the Applicant requests FEMA respond to its first appeal, which it claims it had not received a response to.  The Applicant explains that the letter received by FEMA commented on the content of its appeal but denied it because it was received after the statutory guidelines.  The Applicant disagrees with this finding and references its submission to the Grantee as support for its appeal being timely.

The Grantee concurs in a letter emailed to FEMA on June 29, 2017, and acknowledges that the Applicant timely filed its first appeal, but the Grantee failed to forward the appeal within 60 days.  The Grantee states that only after the Applicant followed up did the Grantee forward the appeal, approximately 65 months after the Grantee received it.  The Grantee requests FEMA not hold the Applicant responsible for this mistake made by the Grantee.

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[4]  FEMA’s implementing regulations require that applicants file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed, at which point the grantee must forward the appeal, along with a written recommendation, to the RA within 60 days.[5]  Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the Applicant’s appeal rights lapse.[6]  Neither the Stafford Act, nor FEMA’s regulations, authorize FEMA to grant time extensions for filing appeals.[7]

Here, the Grantee notified the Applicant on October 1, 2010 of FEMA’s deobligation.[8]  The Applicant submitted its first appeal to the Grantee on November 5, 2010.[9]  Federal regulations afforded the Grantee 60 days to forward the first appeal to FEMA, but the Grantee did not do so until April 27, 2016, approximately 65 months later.  Due to the first appeal being submitted by the Grantee after the expiration of the 60-day timeframe required by 44 C.F.R. § 206.206(c)(2), the RA correctly determined that the first appeal was untimely.

Conclusion

The Grantee did not submit the Applicant’s first appeal within the 60-day timeframe pursuant to 44 C.F.R. § 206.206(c).  Thus, the Applicant’s first appeal is untimely.