Time Extension

Appeal Brief

Conclusion:  The Applicant’s second appeal is time-barred and therefore a review of the substance of the appeal is unnecessary and is moot.

Summary Paragraph

On September 13, 2004, Okaloosa County declared a state of emergency as high winds, heavy rains, and flooding from Hurricane Ivan (1551-DR-FL) impacted the county.  Several exempt Okaloosa County employees worked overtime in response to the event.  On March 21, 2005, FEMA prepared PW 1740 and determined that overtime for exempt employees was not eligible because it was discretionary per the Applicant’s pay policy.  In a first appeal letter submitted August 5, 2005, the Applicant appealed FEMA’s denial of $69,888.02 in exempt employee overtime.  The Acting Regional Director (RD) denied the first appeal on January 17, 2006, stating that overtime for exempt employees was discretionary, contingent upon FEMA funding, and did not apply to non-federal events.  On January 30, 2006, the Grantee notified the Applicant that FEMA denied the first appeal.  In a second appeal letter submitted March 21, 2006 the Applicant maintained that it was following its pay policy.  On March 29, 2007, the Applicant emailed the Grantee to request that the second appeal be withdrawn for the issue to be resolved at closeout as recommended by the Grantee.  On March 3, 2014, following closeout, FEMA obligated PW 1740 version 1 and consistent with previous determinations, did not fund the overtime costs at issue.  On April 24, 2014, the Applicant submitted an appeal for $49,165.95 in overtime force account labor costs.  On June 10, 2014, the Grantee forwarded the appeal to FEMA as a second appeal.  The Grantee supports the Applicant’s appeal and states that the decision to pay overtime is in compliance with the Applicant’s pay policy and is not dependent on Federal funding.

Authorities and Second Appeals

• 44 C.F.R. § 206.206 (b),(c)(1).
• PA Guide (Oct. 1999), at 86.

Headnotes

• 44 C.F.R. § 206.206 states that an Applicant can appeal any FEMA determination and 44 C.F.R. § 206.206(b) allows for a first appeal and a second appeal.
  • Since the Applicant had already submitted a first appeal for the FEMA determination regarding overtime for exempt employees, the Grantee was correct in characterizing the Applicant’s April 24, 2014 appeal as a second appeal.
• 44 C.F.R. § 206.206(c)(1) and the Public Assistance Guide state that applicants must file second appeals within 60 days of the FEMA determination.
  • The RD issued the first appeal decision on January 17, 2006.  The Applicant submitted a second appeal on April 24, 2014, which is greater than 60 days from the date that the Applicant received notice of the first appeal decision.

Appeal Letter

Appeal Analysis

Background        

On September 13, 2004, Okaloosa County declared a state of emergency as high winds, heavy rains, and flooding from Hurricane Ivan (FEMA-1551-DR-FL) impacted the county.  Several exempt county employees worked overtime in response to the event.  On September 22, 2004, Okaloosa County prepared a Hurricane Ivan supplement to its emergency pay policy authorizing overtime for exempt employees.  On March 21, 2005, FEMA prepared PW 1740 version 0 for $238,319.41, of which $169,330.98 was labor costs.  In a memo included with the PW, FEMA determined that overtime for exempt employees was not eligible because the pay policy provided the County Manager with the discretion to authorize overtime rather than required it.                                                                                                                            

First Appeal

In a first appeal letter dated August 5, 2005, the Applicant appealed FEMA’s denial of $69,888.02 in exempt employee overtime as well as several other issues that were ultimately resolved at closeout.  The applicant reaffirmed that its pay policy was not discretionary and claimed that exempt employees were paid overtime for non-federally funded work during Tropical Storms Isidore and Barry.  On November 4, 2005, the Florida Division of Emergency Management (Grantee) forwarded the first appeal to FEMA Region IV, stating that all force account labor was eligible and complied with the Applicant’s established pay policy as well as FEMA policy.

The FEMA Region IV Acting Regional Director (RD) denied the first appeal on January 17, 2006, stating that overtime for exempt employees was discretionary, contingent upon FEMA funding, and did not apply to non-Federal events.  The RD cited OMB Circular A-87 which states that to be allowable under Federal awards, costs must be consistent with policies, regulations, and procedures that apply uniformly to both Federal awards and other activities of the governmental unit.[1]  On January 30, 2006, the Grantee notified the Applicant that the first appeal was denied.

Second Appeal

On March 21, 2006 the Applicant submitted its second appeal requesting reimbursement in the amount of $69,888.02 for overtime force account labor costs as well as several other issues that were ultimately resolved at closeout.  The Applicant maintains that it was following its pay policy and that the Hurricane Ivan supplement clarified but did not change existing policy.  The Applicant asserts that “exempt employees have been and are paid overtime for other non-Federally funded work”[2] and cites Tropical Storms Isidore and Barry as examples of Applicant’s standard overtime pay practices.  The Applicant further explains that the Okaloosa County Human Resources Policy Manual, Chapter VI, Section O authorizes overtime pay for exempt employees during emergencies and disasters and that the only discretionary action taken by the County Manager is to determine the actual time of day that the overtime begins in order to:  (1) limit the Applicant’s exposure, and (2) provide consistency across the organization.  On March 29, 2007, the Applicant emailed the Grantee to request that the second appeal be withdrawn for the issue to be resolved at closeout, as recommended by the Grantee.[3]

On February 8, 2010, the Grantee requested a large project closeout.  On March 3, 2014, FEMA obligated version 1 for $238,319.41, of which $172,634.08 was labor costs.  On April 24, 2014, the Applicant submitted an appeal requesting reimbursement for $49,165.95 in overtime force account labor costs.[4]  The Applicant reiterated that the pay policy in place at the time of the disaster allows for exempt employee overtime and that the Hurricane Ivan supplement only identified specific hours to assist the timekeepers in processing payroll.  On June 10, 2014, the Grantee forwarded the appeal to FEMA as a second appeal.  The Grantee supported the Applicant’s appeal and stated that the decision to pay overtime was in compliance with the Applicant’s pay policy and was not dependent on Federal funding.  The Grantee addressed the timeliness of the appeal and pointed out that the Applicant’s first appeal was denied on January 17, 2006, and Applicant filed a second appeal on March 21, 2006 but later withdrew it.  The Applicant then requested a closeout, and FEMA wrote version 1 on March 3, 2014.  Since this is the action that the Applicant is appealing, the Grantee considers the appeal to be timely.  The Grantee also states that the Hurricane Ivan supplement to the Applicant’s pay policy did not alter or void the established policy, but instead should be seen as an explanation rather than a change in policy.  The Grantee then reiterates that the Applicant provided overtime for exempt employees during Tropical Storms Isadore and Barry, for which they did not receive Federal funding.  On August 22, 2014, FEMA Region IV forwarded the second appeal to FEMA HQ.

Discussion

First vs. Second Appeal

“An eligible applicant, subgrantee, or grantee may appeal any determination previously made related to an application for or the provision of Federal assistance.”[5]  FEMA regulations provide for a first appeal and a second appeal for each FEMA determination.[6]  On August 5, 2005, the Applicant appealed FEMA’s determination about overtime for exempt employees.  On March 21, 2006, the Applicant submitted a second appeal for the same FEMA determination but later withdrew it at the Grantee’s recommendation.  On April 24, 2014, the Applicant submitted another appeal for the same FEMA determination.  Since the Applicant already submitted a first appeal for the FEMA determination regarding overtime for exempt employees, the Grantee was correct in characterizing the April 24, 2014 appeal as a second appeal.

Appeal Timeliness

“[Applicants] must file appeals within 60 days after receipt of a notice of the action that is being appealed.”[7]  “If an appeal is denied by the RD, the applicant may submit a second appeal to [FEMA Headquarters].”[8]  “The applicant must submit the appeal to the State within 60 days of receiving the RD’s denial.”[9]  In the RD’s first appeal decision, dated January 17, 2006, she stated:

The Applicant may submit a second appeal to the Associate Director.  The appeal shall be made in writing, through the Grantee and submitted within 60 days of receipt of notice of the Regional Director’s denial of the first appeal.  This is in accordance with 44 CFR Part 206, Subpart G, Section 206.206(d).[10]

The Grantee notified the Applicant of the first appeal decision on January 30, 2006 and again reminded the Applicant of its second appeal rights and time limitations:

Should you disagree with FEMA’s determination, you have the right to appeal in accordance with 44 CFR, §206.206.  You may file a second appeal within 60 days of receipt of this correspondence to the Grantee . . . .[11]

The RD issued the first appeal decision on January 17, 2006.  The Applicant received notice of the RD’s first appeal decision on January 30, 2006.  On March 21, 2006, the Applicant submitted a second appeal that it withdrew on March 29, 2007.  The withdrawal of the appeal does not impact the timeline to contest the January 17, 2006 decision.  The Applicant submitted another second appeal on April 24, 2014, more than eight years after the first appeal decision.  The Applicant’s April 24, 2014 appeal does not meet the submission requirements of 44 C.F.R. § 206.206.

The Applicant was aware of its appeal rights, as well as the procedural requirements for submission, and chose to withdraw its timely second appeal.  The second appeal that was filed on April 24, 2014 is untimely.  Consequently, a review of the substance of the appeal is unnecessary and the issue is moot.

Conclusion

The Applicant’s April 24, 2014 second appeal does not meet the submission timeline established by 44 C.F.R. § 206.206.  Consequently, the second appeal is untimely and denied.