Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4273
ApplicantCity of White Sulphur Springs
Appeal TypeSecond
PA ID#025-86812-00
PW ID#PW) 978
Date Signed2019-01-29T00:00:00

Summary Paragraph

Between June 22, 2016 and June 29, 2016, severe storms swept through numerous communities in West Virginia including the City of White Sulphur Springs (Applicant).  The President declared a disaster, and to address the damage FEMA prepared PW 978 to cover the work to clean/replace culverts and to repair ditches throughout the city.  On January 12, 2018, the Applicant received FEMA’s Determination Memo stating that the work was ineligible due to issues related to procurement and the inability to show that the damages were a direct result of the disaster.  On March 2, 2018, the Applicant appealed, contending that all the work was eligible.  On March 6, 2018, the West Virginia Division of Homeland Security and Emergency Management (Recipient) received the Applicant’s first appeal.  The Recipient then forwarded the appeal on May 14, 2018.  The FEMA Region III Regional Administrator (RA) issued a Final Request for Information (RFI) requesting documentation to show when the Recipient received the Applicant’s appeal so it could determine whether the Recipient’s forwarding of the appeal was within the 60-day timeframe.  The Recipient responded to the RFI conceding that the appeal was not forwarded within the timeframe and offered no excuses for the untimeliness.  The RA denied the appeal because the Recipient did not forward the appeal to FEMA within the regulatory timeframe.  On second appeal, the Applicant argues that FEMA should not read the regulations so narrowly as to deny assistance when it is so severely needed.  The Applicant also contends that it forwarded its first appeal to FEMA directly on March 2, 2018 and therefore the appeal was timely.  

 

Authorities and Second Appeals

  • Stafford Act of 1988 § 423
  • 44 C.F.R. § 206.206 (2015).
  • Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4 (Aug. 5, 2016).
  • City of Atlanta, FEMA 1858-DR-GA, at 6 (May 10, 2018).
  • Port of Galveston, FEMA-1791-DR-TX, at 6 n.39 (Jan. 19, 2017).

 

Headnotes

  • 44 C.F.R. 206.206 states that within 60 days of receiving an applicant’s appeal, a recipient will review and forward the appeal to FEMA with a written recommendation.
    • The Recipient did not forward the Applicant’s appeal to FEMA within 60 days of receipt of the appeal.
  • 44 C.F.R. 206.206 also requires applicants to appeal through the recipient to the Regional Administrator.
    • The Applicant cannot omit the Recipient from the appeal process by filing an appeal directly to FEMA.

 

Conclusion

 

The Recipient forwarded the Applicant’s first appeal outside of the regulatory 60-day timeframe; therefore, the appeal was untimely.  Additionally, the direct submission of an appeal by the Applicant to FEMA does not comply with the proper appeal procedures and cannot be considered a timely appeal.  Thus, the appeal is denied.  

Appeal Letter

Jimmy Gianato

Director and Homeland Security Advisor

Division of Homeland Security and Emergency Management

1900 Kanawha Blvd., East

Building 1, Room EB-80

Charleston, WV 25305-0360

 

Re:  Second Appeal – City of White Sulphur Springs, PA ID: 025-86812-00, FEMA-4273-DR-WV, Project Worksheet (PW) 978 – Appeal Timeliness  

 

Dear Mr. Gianato:

 

This is in response to a letter from your office dated September 14, 2018, which transmitted the referenced second appeal on behalf of the City of White Sulphur Springs (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $428,163.62 in costs for the cleaning, repair, and replacement of culverts and ditches.

 

As explained in the enclosed analysis, I have determined that the first appeal was untimely.  The Recipient did not forward the Applicant’s first appeal to FEMA within the 60-day timeframe prescribed by 44 C.F.R. § 206.206, Appeals.  Further, an Applicant’s direct submission of an appeal to FEMA does not comply with proper appeal procedures and cannot be considered a timely appeal.  Accordingly, I am denying this appeal.

 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 

Sincerely,

 

                                                                                              /S/

 

                                                                        Jonathan Hoyes

                                                                        Director

                                                                        Public Assistance Division                                                                                   

 

 

Enclosure

 

cc: MaryAnn Tierney

      Regional Administrator

      FEMA Region III

Appeal Analysis

Background

 

Between June 22, 2016 and June 29, 2016, severe storms swept through numerous communities in West Virginia, including the City of White Sulphur Springs (Applicant).  FEMA prepared Project Worksheet (PW) 978 to cover cleaning/replacing culverts and repairing ditches throughout the city.  On January 12, 2018, the Applicant received FEMA’s Determination Memorandum stating that the work was ineligible due to issues related to procurement and the inability to show that the damages were a direct result of the disaster. 

 

First Appeal

 

On March 2, 2018, the Applicant filed its first appeal with the West Virginia Division of Homeland Security and Emergency Management (Recipient) challenging FEMA’s denial of $428,163.62 in costs.  The Applicant also filed its appeal directly with FEMA on March 2, 2018. The Recipient received notice of the Applicant’s appeal via United States Postal Service delivery on March 6, 2018.  The Recipient then transmitted the appeal to FEMA on May 14, 2018.

 

On June 26, 2018, the FEMA Region III Regional Administrator (RA) issued a Final Request for Information (RFI) requesting documentation to show that the Recipient submitted the Applicant’s first appeal within the 60-day timeframe.  The Recipient responded to the RFI conceding that the appeal transmission was untimely.  On July 31, 2018, the RA issued a first appeal decision denying the appeal based on Recipient untimeliness.  The decision stated that because the Recipient received the Applicant’s appeal on March 6, 2018 but did not transmit it until May 14, 2018, the transmission was made 69 days after receipt of the appeal, thus outside of the 60-day regulatory timeframe.

 

Second Appeal

 

The Applicant filed its second appeal with the Recipient on August 9, 2018.  The Applicant argues that it submitted its first appeal directly to FEMA on March 2, 2018 as a safeguard in case the Recipient did not transmit the appeal.  It claims that because it submitted the appeal to FEMA it could not have been late.  The Applicant requests that FEMA not read the 60-day timeframe for appeals found within 44 C.F.R. § 206.206(c)(2) too narrowly and to relax the interpretation of the regulation due to the massive loss of property and significant loss of life which occurred in the city due to the disaster.[1]  The Recipient forwarded the second appeal to FEMA on September 14, 2018.

 

Discussion

 

Section 423(a) of the Stafford Act provides that “any decision regarding eligibility for… 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.”[2]  Within 60 days of receiving an applicant’s appeal, a Recipient will review and forward the appeal to FEMA with a written recommendation.[3]  If either the Applicant or the Recipient fail to meet these deadlines, the appeal is untimely and the applicant’s appeal rights lapse.[4]  Inclusion of recipients within the appeal process is necessary as recipients are responsible for any resulting financial outcome of an award, excluding them from them appeal process would not comport with the Stafford Act.[5]  Moreover, a contrary interpretation of the implementing regulations would absolve recipients from complying with a basic grant management function that they receive funding to complete and legally agreed to preform by signing the FEMA-State Agreement.[6]

 

The Applicant provided documentation to show that the Recipient received its first appeal on March 6, 2018.[7]  This means the Recipient had until May 5, 2018 to forward the appeal to FEMA to be within the regulatory 60-day timeframe.  The Recipient did not forward the Applicant’s appeal until May 14, 2018.[8]  In its June 29, 2018 response to the Final RFI, the Recipient acknowledged the appeal “was sent six (6) days past the due date and offer[ed] no excuses.”[9]  The Recipient further concedes in its second appeal letter that, “the initial appeal was not timely transmitted” by its office.[10]  Therefore, as the Recipient filed the first appeal outside the 60-day timeframe, the Applicant’s first appeal was untimely.

 

The Applicant argues that the appeal was not untimely because it filed a copy of the appeal directly with FEMA on March 2, 2018 – within the 60-day timeframe.  However, the Applicant may not omit the Recipient from the appeal process.  The appeal must be filed in accordance with 44 C.F.R. § 206.206, which requires an applicant to submit the appeal to the Recipient, who will review and forward with a written recommendation to the RA.[11]  The Recipient is legally responsible for management of award funding that flows through it to the Applicant.  Therefore, because the direct submission of an appeal to FEMA does not comply with appeal procedure regulations, FEMA cannot consider the Applicant’s direct submission a timely appeal.[12]  

 

 

 

Conclusion

 

The Recipient forwarded the Applicant’s first appeal outside of the regulatory 60-day timeframe; therefore, the appeal was untimely.  Additionally, the direct submission of an appeal by the Applicant to FEMA does not comply with the proper appeal procedures and cannot be considered a timely appeal.  Thus, the second appeal is denied.  

 

[1] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) (2015) applies strict timeframes for appeal deadlines and FEMA will deny appeals, without consideration of the substance, if the appeal is submitted outside the timeframe.

[2] The Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act of 1988 § 423, 42 U.S.C. § 5189a (2013).

[3] 44 C.F.R. § 206.206(c)(2).

[4] FEMA Second Appeal Analysis, City of Atlanta, FEMA-1858-DR-GA, at 6 (May 10, 2018); FEMA Second Appeal Analysis, Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4 (Aug. 5, 2016).

[5] Stafford Act § 423(c).

[6] 44 C.F.R. §§ 206.32(d), 206.44

[7] Letter from City Attorney, White Sulphur Springs, to Recovery Coordinator, W. Va. Div. of Homeland Sec. and Emergency Mgmt., at 5 (July 3, 2018); United States Parcel Service, Tracking Number: 9505512464378064092091, Delivered, to Agent, (Mar. 6, 2018).

[8] Letter from Recovery Coordinator, W. Va. Div. of Homeland Sec. and Emergency Mgmt, to Reg’l Adm’r, FEMA Region III (May 14, 2018).

[9] Letter from Dir., W. Va. Div. of Homeland Sec. and Emergency Mgmt., to Reg’l Adm’r., FEMA Region III, at 1 (June 29, 2018). Despite the Recipient’s concession that the appeal was six days late, the appeal was in fact nine days late.

[10] Letter from Dir., W. Va. Div. of Homeland Sec. and Emergency Mgmt., to Assistant Adm’r, FEMA at 1 (Sept. 14, 2018).

[11] 44 C.F.R. § 206.206(c)(2).

[12] See FEMA Second Appeal Analysis, Port of Galveston, FEMA-1791-DR-TX, at 6 n.39 (Jan. 19, 2017).

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