Appeal Timeliness, 705(c)

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1545
ApplicantTown of Windermere
Appeal TypeSecond
PA ID#095-78050-00
PW ID#(PWs) 650 and 7399
Date Signed2018-05-18T00:00:00
Conclusion:  The Florida Division of Emergency Management (Grantee) failed to forward the Town of Windermere’s (Applicant’s) first appeal within 60 days of receipt.  Thus, the first appeal was untimely.  FEMA’s policy implementing Stafford Act § 705 protections does not apply to matters where appeal rights lapsed. 
 
Summary Paragraph
On September 3, 2004, Hurricane Frances caused extensive damage throughout the Town of Windermere in Florida.  FEMA prepared Project Worksheets (PWs) 650 and 7399 to document the Applicant’s costs to remove and dispose of vegetative debris deposited on its public property and rights of way.  During the closeout process, FEMA identified cost underruns and duplicated invoices, and reduced each project’s funding accordingly.  The Grantee notified the Applicant of FEMA’s decision to deobligate funds from PWs 650 and 7399, and advised the Applicant that it may appeal the decision by submitting an online appeal request through the Grantee’s web-based grants management system (FloridaPA.org).  The Applicant appealed the decision by submitting an appeal request through FloridaPA.org on February 15, 2016, which included its appeal narrative and supporting documentation.  It also uploaded its appeal narrative to FloridaPA.org on March 15, 2016, in a formal letter to the Grantee.  The appeal contended the funds were deobligated in error because FEMA incorrectly applied many of the Applicant’s invoices to the wrong PWs.  The Applicant also asserted that Stafford Act § 705, subsections (a) and (c) bar FEMA from recovering the funds in question.  The Grantee forwarded the Applicant’s appeal to FEMA on May 18, 2016.  FEMA issued a Final Request for Information requesting proof that the appeal was filed within the regulatory time limits of 44 C.F.R. § 206.206(c).  In response, the Applicant provided documentation establishing it received notice of FEMA’s decision on December 17, 2015, and timely-filed its appeal through FloridaPA.org on February 15, 2016.  The Grantee also replied in a letter stating it did not have evidence that it forwarded the appeal to FEMA within the 60-day deadline.  The Regional Administrator (RA) denied the appeal as untimely concluding:  (1) the Applicant’s appeal rights are exhausted because the appeal was not submitted within the regulatory time limits of 44 C.F.R. § 206.206(c); and (2) according to Recovery Policy FP 205-081-2, Stafford Act § 705(c) does not bar recovery from PWs 650 and 7399 because the Applicant’s appeal rights are exhausted.  On second appeal, the Applicant reiterates its previous arguments and contends:  (1) Recovery Policy FP 205-081-2 does not apply here because the policy was issued after the first appeal was filed; (2) it should not be penalized for the Grantee’s delayed transmittal; and (3) its February 15, 2016 appeal submission through FloridaPA.org was timely and met all appeal requirements because no law, regulation, or policy requires an appeal to be submitted in any particular form.  The Grantee also submitted a second appeal letter conceding that it did not forward the Applicant’s first appeal to FEMA within 60 days of receipt. 
 
Authorities and Second Appeals
  • Stafford Act §§ 423(a), 705(c).
  • 44 C.F.R. §§ 206.206(a) and (c)(1)–(2).
  • Recovery Policy FP 205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures.
  • Goshen Historic District, FEMA-4085-DR-NY, at 2, Dep’t of Transp., FEMA-4068-DR-FL, at 3, Roman Catholic Archdiocese of Miami, FEMA-1602-DR-FL, at 3–4, City of Pensacola, FEMA-1551-DR-FL, at 5, Port of Galveston, FEMA-1791-DR-TX, at 7.
 
Headnotes
  • Section 423 of the Stafford Act, implemented by 44 C.F.R. § 206.206(c), requires an applicant to appeal a determination within 60 days of receiving notice.  The grantee must forward the appeal together with a written recommendation, within 60 days of receipt.  Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse.
  • 44 C.F.R. § 206.206(a) provides that appeals will be made in writing through the grantee and must contain documented justification supporting the appellant’s position, specifying the monetary figure in dispute and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.
    • The Applicant demonstrated its February 15, 2016 appeal submittal met appeal content and format requirements and was timely filed.  However, the Grantee failed to forward it to FEMA within 60 days of receipt. 
  • Recovery Policy FP 205-081-2, implementing Stafford Act § 705(c), does not apply where appeal rights lapsed and FEMA has made a final administrative decision.
    • Because the first appeal was untimely, the Applicant’s appeal rights lapsed.  Therefore, Stafford Act § 705(c) protections, as implemented by Recovery Policy FP 205-081-2, do not apply here.

 

Appeal Letter

Mr. Wesley Maul
Director
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
 
 
Re:  Second Appeal – Town of Windermere, PA ID 095-78050-00, FEMA‑1545-DR-FL, Project Worksheets (PWs) 650 and 7399 – Appeal Timeliness, 705(c)
 
 
Dear Mr. Maul:
 
This is in response to your office’s letter submitted on March 12, 2018, which transmitted the above referenced second appeal on behalf of the Town of Windermere (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its first appeal as untimely.
 
As explained in the enclosed analysis, I have determined that the Applicant’s appeal rights lapsed because the Grantee submitted the first appeal beyond the 60-day timeframe required by Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2).  Consequently, the protections of Stafford Act § 705(c) do not apply.  Accordingly, I am denying the 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: Gracia B. Szczech
      Regional Administrator
      FEMA Region IV

 

Appeal Analysis

Background
 On September 3, 2004, Hurricane Frances caused extensive damage throughout the Town of Windermere (Applicant) in Florida.  FEMA prepared Project Worksheets (PWs) 650 and 7399 to document the Applicant’s costs to remove and dispose of vegetative debris deposited on public property and rights of way.  At closeout, FEMA identified duplicated costs and cost underruns, and then reduced funding for PW 650 by $313,811.45 and PW 7399 by $19,982.28 accordingly.[1] 
 
The Florida Division of Emergency Management (Grantee) notified the Applicant of the deobligation in PWs 650 and 7399 by letters dated February 5, 2015, and June 24, 2015, respectively.  The Grantee enclosed FEMA’s project application summary (P.2 report) with the notification letter for each PW, and advised the Applicant that it had 60 days upon each determination’s receipt to submit an appeal with supporting documentation through the Grantee’s online grants management system (FloridaPA.org).[2]  FEMA subsequently prepared PW 650, Version 2, to reinstate $68,547.50 it disallowed in error from PW 650, Version 1.[3]
 
First Appeal
 
The Applicant submitted an online appeal request through FloridaPA.org on February 15, 2016, requesting that FEMA reinstate $262,222.42 in funds that were deobligated from PWs 650 and 7399.[4]  The Applicant argued the funds were deobligated in error because FEMA incorrectly paired invoices for work related to Hurricane Frances with PWs for a different disaster.  It also contended that the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 705(a) prohibits recovery from PWs 650 and 7399 because more than three years had passed since the funding was approved and paid.[5]  The Applicant uploaded a formal first appeal letter to FloridaPA.org on March 15, 2016,[6] reiterating its previous arguments and asserting Stafford Act § 705(c) bars recovery because all three prongs of the subsection were satisfied.[7]  The Grantee forwarded the appeal to FEMA on May 18, 2016, with a letter dated May 17, 2016.
 
FEMA issued a Final Request for Information (Final RFI) on August 14, 2017, explaining that the appeal would likely be denied as untimely because the administrative record did not provide evidence that the Applicant submitted the appeal to the Grantee within 60 days of receiving notice of the appealable action, nor did the record contain proof that the Grantee forwarded the appeal to FEMA within 60 days of receiving it from the Applicant.[8]  Accordingly, FEMA requested additional documentation demonstrating the appeal was filed within the regulatory time limits of Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c).[9]  The Final RFI also stated that the timeliness of the appeal would be determined based on the record of when the Applicant received notice of the deobligation, the Applicant’s March 15, 2016 appeal letter, and the Grantee’s transmittal of the appeal to FEMA on May 18, 2016. 
 
The Applicant responded on September 13, 2017, providing additional documentation, such as screenshots from FloridaPA.org and email correspondence to verify it did not receive notice of the deobligation or the P.2 reports until December 17, 2015.[10]  For example, it provided correspondence from the Grantee confirming the 60-day timeframe to appeal began on December 17, 2015.[11]  The Applicant also explained that it initially filed its appeal and supporting documentation through FloridaPA.org on February 15, 2016, but later filed an additional formal appeal letter at the Grantee’s request on March 15, 2016.  The Grantee submitted a separate response letter dated August 28, 2017, stating it could not demonstrate it forwarded the appeal to FEMA before the 60-day regulatory deadline.[12]  Regardless, the Grantee insisted the initial burden falls on FEMA to demonstrate Stafford Act § 705(c) does not prohibit recovery before it may proceed with deobligation; thus, the Applicant and Grantee are not required to challenge the deobligation on appeal or assert Stafford Act § 705(c) as a defense until FEMA meets its initial burden.
 
On November 13, 2017, the FEMA Region IV Regional Administrator (RA) denied the appeal as untimely.  Regardless of possible dates the Applicant received notice or filed its first appeal, the RA concluded the Applicant’s appeal rights were exhausted because the Grantee forwarded the appeal to FEMA beyond the 60-day regulatory deadline.  Pursuant to FEMA’s Recovery Policy FP 205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures (Recovery Policy FP 205-081-2), the RA also explained that Stafford Act § 705(c) protections do not apply where appeal rights are exhausted and FEMA has rendered a final administrative decision.[13]
 
Second Appeal
 
On January 7, 2018, the Applicant submitted a second appeal requesting $272,236.23.[14]  The Applicant reasserts its previous arguments, and argues Recovery Policy FP 205-081-2 does not apply here because it filed its first appeal before the policy came into effect.  It also contends it should not be penalized for the Grantee’s untimely transmittal.  Lastly, the Applicant explains its February 15, 2016 first appeal submission was timely and met all appeal content criteria, as neither the Stafford Act nor regulation require submission of appeals “in a particular form.”[15]
 
The Grantee forwarded the second appeal on March 12, 2018, with a letter reiterating its previous arguments.[16]  The Grantee concedes it did not forward the first appeal within 60 days of receipt, but insists the Applicant submitted its appeal on time and should not be penalized for the Grantee’s late submission.  It also argues the appeal time limits under 44 C.F.R. § 206.206(c) should not apply because FEMA did not issue its first appeal decision within 90 days of receipt.
 
Discussion
 Appeal Timeliness
 Section 423 of the Stafford Act, as implemented by 44 C.F.R. § 206.206, allows an eligible applicant to appeal any Public Assistance eligibility determination within 60 days after receiving notice of the award or denial of award of such assistance.[17]  Implementing regulations require an applicant to submit an appeal to the grantee within 60 days of receiving notice of the appealable action.[18]  The date an applicant receives notice of FEMA’s eligibility determination serves as the date from which the applicant’s 60-day time period to file a first appeal runs.[19]  Following receipt of an applicant’s appeal, a grantee has 60 days to forward the appeal to the Regional Administrator.[20]  Failure by either an applicant or the grantee to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse.[21]  Appeals must also be made in writing and must contain documented justification supporting the appellant’s position, the amount in dispute, and the provisions in Federal law, regulation, or policy with which the appellant believes the initial action was inconsistent.[22]
 
The Applicant provided records demonstrating it did not receive notice or FEMA’s P.2 reports until December 17, 2015.[23]  For example, it submitted correspondence confirming its first appeal filing deadline was February 17, 2016, because it did not receive notification of the deobligation until December 17, 2015.[24]  The Applicant also demonstrated it submitted its first appeal in writing and to the Grantee through FloridaPA.org on February 15, 2016.[25]  In that filing, the Applicant stated its position, the disputed amount, and why it believed the deobligation was inconsistent with Federal law and regulation.[26]  It also supplemented the initial filing with a formal appeal letter dated March 15, 2016.  Based on the record showing the Applicant received notice of the deobligation on December 17, 2015, and filed its first appeal on February 15, 2016, FEMA finds the Applicant submitted a timely first appeal that met the regulatory format and content requirements.  However, the Grantee did not forward the first appeal to FEMA until May 18, 2016.[27]  Regardless of whether the Grantee received the appeal in February or March 2016, it concedes it did not forward the appeal to FEMA within the 60-day timeframe under 44 C.F.R. § 206.206(c)(2).[28]  Therefore, the appeal was rendered untimely by the Grantee’s late transmittal.[29] 
 
Stafford Act Section 705(c)
 
Stafford Act § 705(c) provides that a state or local government is not liable for reimbursement or any other penalty for any payment made pursuant to the Stafford Act if the payment was authorized by an approved agreement specifying costs, the costs were reasonable, and the purpose of the grant was accomplished.[30]  FEMA implemented this statutory provision through Recovery Policy FP 205-081-2.[31]  If all three prongs of Stafford Act § 705(c) are satisfied, FEMA is prohibited from recovering grant funds even if it later determines it made an error in determining eligibility.[32]  However, this statutory prohibition does not apply to matters where appeal rights have lapsed and FEMA has made a final administrative decision.[33] 
 
The Applicant argues Recovery Policy FP 205-081-2 should not apply because it filed its first appeal before the policy came into effect.  As explained above, the Applicant’s appeal rights lapsed because the Grantee forwarded the appeal beyond the 60-day regulatory timeframe.  Thus, Stafford Act 705(c) protections, as implemented by FEMA policy, do not apply here.[34]
 
Conclusion
 
The first appeal was untimely because the Grantee did not forward it to FEMA within 60 days of receipt as required by 44 C.F.R. § 206.206(c)(2).  Furthermore, Stafford Act § 705(c) protections, as implemented by FEMA policy, do not apply after an applicant’s appeal rights lapsed.  Accordingly, the appeal is denied and FEMA may recover funding. 
 
[1] Project Worksheet 650, Town of Windermere, Version 1 (Jan. 21, 2015); Project Worksheet 7399, Town of Windermere, Version 1 (June 5, 2015).  FEMA determined that PW 650 included a cost underrun of $8.44 and $313,803.01 in duplicated costs that were also invoiced in PW 7399.  For PW 7399, FEMA also identified a cost underrun of $17,732.28 and $2,250.00 in duplicated costs also invoiced in PW 1143.
[2] Letters from State Pub. Assistance Officer, Fla. Div. of Emergency Mgmt., to Fin. Dir., Town of Windermere, (Feb. 5, 2015 & June 24, 2015). 
[3] Project Worksheet 650, Town of Windermere, Version 2 (Mar. 22, 2016).
[4] The Applicant entered the text of its appeal in an online appeal request form submitted through FloridaPA.org.
[5] The appeal narrative submitted through FloridaPA.org cited the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 705(a), 42 U.S.C. § 5205(a) (2000).
[6] Letter from Applicant’s Attorney, to Appeals Officer, Fla. Div. of Emergency Mgmt. (Mar. 15, 2016).
[7] Id. at 2 (quoting Stafford Act § 705(c)).
[8] Letter from Dir., Recovery Div., FEMA Region IV, to Dir., Fla. Div. of Emergency Mgmt. & Applicant’s Attorney, at 1 (Aug. 14, 2017). 
[9] Additional information pertaining to the substance of the appeal was not requested.
[10] Letter from Applicant’s Attorney, to Dir., Recovery Div., FEMA Region IV, at 1–2 (Sept. 13, 2017) [hereinafter, Applicant’s Final RFI Response], and attached documentation referenced as “Exhibit A” [hereinafter, Exhibit A].
[11] Applicant’s Final RFI Response, at 1; Exhibit A, at 61.
[12] Letter from Dir., Fla. Div. of Emergency Mgmt., to Dir., Recovery Div., FEMA Region IV, at 2 (Aug. 28, 2017).
[13] FEMA Recovery Policy FP 205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 2 (Mar. 31, 2016).
[14] Letter from Applicant’s Attorney, to Assistant Adm’r, Recovery, FEMA, through Adm’r, FEMA Region IV (Jan. 7, 2018).  While FEMA only deobligated a total of $265,248.23, the Applicant’s amount requested on second appeal only accounted for the Federal cost share of the $68,547.50 reinstated in PW 650, Version 2.
[15] Id. at 3.
[16] Letter from Dir., Fla. Div. of Emergency Mgmt., to Assistant Adm’r, FEMA Recovery, through Adm’r, Recovery, FEMA Region IV (Mar. 12, 2018) [hereinafter Grantee’s Second Appeal Letter].
[17] Stafford Act § 423(a).
[18] 44 C.F.R. § 206.206(c)(1) (2004).
[19] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 3, at 12 (Apr. 7, 2014).
[20] 44 C.F.R. § 206.206(c)(2).
[21] FEMA Second Appeal Analysis, Goshen Historic Track, Inc., FEMA-4085-DR-NY, at 2 (Jan. 23, 2018); FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-FL, at 3–4 (Aug. 5, 2016).
[22] 44 C.F.R. § 206.206(a).
[23] Applicant’s Final RFI Response, Exhibit A, at 51–54 (documenting the Grantee emailed the notification letters with the P.2 reports to the Applicant on December 17, 2015); at 61–63 (documenting, in an email sent to the Grantee on Dec. 16, 2015, that the Applicant had not received the P.2 report and that the Applicant’s mailing address was inaccurate in FloridaPA.org.).
[24] Applicant’s Final RFI Response, Exhibit A, at 61.
[25] Id. at 64–65 (providing an excerpt of the appeal’s full text entered in FloridaPA.org). 
[26] Id. at 69–70 (providing a snapshot from FloridaPA.org as proof that the Applicant first submitted the appeal for Grantee review on February 15, 2016).
[27] Email from Fla. Div. of Emergency Mgmt. Agency, to FEMA Region IV, FEMA-R4-PA-Appeals [shared distribution list] (May 18, 2016, 10:00 AM) (forwarding the first appeal).
[28] Grantee’s Second Appeal Letter, at 3 (conceding it “forwarded the Subrecipient’s appeal untimely to FEMA Region IV.”). 
[29] See, e.g., FEMA Second Appeal Analysis, City of Pensacola, FEMA-1551-DR-FL, at 5 (Mar. 22, 2017) (finding that “… both prongs of [44 C.F.R. §] 206.206(c) must be met in order for an appeal to be timely.”).
[30] Stafford Act § 705(c).
[31] FP 205-081-2, at 4–7.
[32] Id. at 4.
[33] Id.; FEMA Second Appeal Analysis, Port of Galveston, FEMA-1791-DR-TX, at 7 (Jan. 19, 2017).
[34] FEMA Second Appeal Analysis, Roman Catholic Archdiocese of Miami, FEMA-1602-DR-FL, at 3–4 (Jan. 3, 2018).
Last updated
Return to top