Appeal Timeliness

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From October 3 to October 19, 2016, strong winds, heavy rains, and flooding from Hurricane Matthew deposited large quantities of vegetative and construction debris across Brevard County (Applicant).[1]  FEMA prepared Project Worksheets (PW) for the Applicant’s debris removal from public property, but did not prepare a PW for private property debris removal.

In a letter dated February 7, 2017, FEMA determined the Applicant did not demonstrate that debris removal on private property was in the public interest.  The Florida Division of Emergency Management (Recipient) forwarded FEMA’s determination to the Applicant the same day, stating that the Applicant had 30 days[2] to appeal the determination.

First Appeal

In a first appeal dated April 6, 2017, the Applicant claimed that it made an official determination that removal of debris from private property was in the public interest and that the State Emergency Management Act gave it the legal responsibility to remove debris from private property. 

In an October 6, 2017 email to FEMA, the Recipient noted that it failed to forward the Applicant’s appeal to FEMA within the regulatory timeframe, but recommended that FEMA grant the appeal.  The same day, the Recipient forwarded the Applicant’s appeal to FEMA with a letter of support reiterating the Applicant’s arguments.

On December 19, 2017, FEMA sent a final request for information (RFI) noting that the Recipient did not forward the appeal to FEMA within the required 60-day submission timeframe, and requesting other missing documentation pertaining to private property debris removal.  The Recipient responded to the final RFI on December 22, 2017, arguing that Section 705(c) of the Stafford Act is a statutory bar to deobligation, so the Applicant and Recipient should not be required to provide any information regarding this appeal until FEMA provides the requisite Section 705(c) analysis.  Therefore, FEMA cannot proceed with a deobligation of funds.

On April 23, 2018, the Regional Administrator denied the appeal and determined that the Recipient did not file the appeal within the 60-day time limit requirements established by 44 C.F.R. § 206.206(c).

Second Appeal

In a second appeal dated May 24, 2018, the Applicant requests that FEMA review both the substantive and timely issues on appeal.  The Applicant argues that FEMA is interpreting 44 C.F.R. § 206.206(c) too narrowly in a manner that is not required by the plain language of the Stafford Act, and that as a matter of policy, is unjust and not in keeping with the intent of the statute.  The Applicant states that while 44 C.F.R. § 206.206(c)(1) requires the Applicant to submit the appeal to the Recipient within 60 days, 44 C.F.R. § 206.206(c)(2) does not require the Recipient to submit the appeal to FEMA within 60 days since the word “will” is used as opposed to “must.”  The applicant states this is supported by the Stafford Act, which does not have a timeliness requirement for the Recipient.  Therefore, the Applicant contends the appeal is timely since it was received by the Recipient within 60 days of FEMA’s determination.  In addition, the Applicant states that the large number of disaster events that hit the State of Florida each year affect the Applicant’s and Recipient’s ability to meet procedural deadlines and that FEMA should amend 44 C.F.R. § 206.206 to provide a mechanism that would allow it to grant time extensions for applicants or recipients to submit appeals.  The Recipient forwarded the Applicant’s second appeal on July 20, 2018, reiterating the Applicant’s arguments and adding that since FEMA did not respond to the first appeal within 90 days, the purpose of the timeframes is defeated.

Discussion

Appeal Timeliness

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.”[3]  Within 60 days of receiving an applicant’s appeal, a recipient will review and forward the appeal to FEMA with a written recommendation.[4]  FEMA policy reinforces that “[t]he Recipient must forward the appeal with its written recommendation to FEMA within 60 days of its receipt of the appeal.”[5]  If either the applicant or the recipient fail to meet these deadlines, the appeal is untimely and the applicant’s appeal rights lapse.[6] 

Both the Applicant and the Recipient acknowledge that the Recipient received the Applicant’s first appeal letter on April 6, 2017.  Accordingly, the Recipient had until June 5, 2017 (60 days from receipt of the first appeal) to transmit the appeal to FEMA.  However, the Recipient did not forward the appeal with its recommendation letter to FEMA until October 6, 2017.  Therefore, the Recipient submitted the first appeal more than 120 days beyond the 60-day timeframe required by 44 C.F.R. § 206.206(c)(2).  Consequently, the appeal is untimely.[7]

The Applicant also argues that FEMA should seek to amend 44 C.F.R. § 206.206 to provide a mechanism that would allow it to grant time extensions for applicants or recipients to submit appeals in the event that a disaster or disasters affect the applicant’s and recipient’s ability to meet procedural deadlines.  This request relief, however, is beyond FEMA’s appellate scope of review.  Thus, FEMA’s effective regulations and policies do not provide for time extensions for filing appeals.[8]

FEMA’s Regulatory Implementation of Stafford Act Section 423

The Applicant maintains that while 44 C.F.R. § 206.206(c)(1) requires the Applicant to submit the appeal to the Recipient within 60 days, 44 C.F.R. § 206.206(c)(2) does not require the Recipient to submit the appeal to FEMA within 60 days; however, this is not the case.  The term “applicant” is broad and is inclusive of both recipients and subrecipients; therefore, the 60-day timeframe applies to both subrecipients and recipients separately.[9]  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 perform by signing the FEMA State Agreement.[10]  Moreover, inclusion of recipients within the appeal process is necessary because recipients, as the recipient of the grant award, are legally accountable for use of the funds.[11]  As recipients are responsible for any resulting financial outcome of an award, excluding them from the appeal process would not comport with the Stafford Act.[12] 

Conclusion

The RA properly determined the Applicant’s first appeal was untimely because the Recipient submitted the appeal beyond the 60-day timeframe required by 44 C.F.R. § 206.206(c)(2).  Therefore, the second appeal is denied.