Governor’s Office of Homeland Security & Emergency Preparedness

1. Governor’s Office of Homeland Security & Emergency Preparedness 2009 Education Outreach Program

2. Homeland Security Act of 20026 U.S.C. § 101 et. seq. Creates Department of Homeland Security Places FEMA within the DHS. (Sec. 503(a) (6 U.S. C. § 313(a)): “. . . There is in the Department the Federal Emergency Management Agency, headed by an Administrator.” “The Administrator shall provide Federal leadership necessary to prepare for, protect against, respond to, recover from, or mitigate against a natural disaster, act of terrorism, or other man-made disaster, including . . . assisting the President in carrying out the functions under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.” Sec. 504(a) (6 U.S. C. § 314(a)).”

3. Stafford Act 42 U.S.C. § 5121 et. seq. • Intent of Congress “to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from . . . disasters.” Sec. 101(b) (42 U.S.C. § 5121(b)). • Repeatedly states that “the President may,” “the President is authorized to,” and “the President shall” do various things to further that end. E.g., Sec. 407(a) (42 U.S.C. § 5173(a)): “. . . The President, whenever he determines it to be in the public interest, is authorized . . . to make grants to any State or local government or owner or operator of a private non-profit facility for the purpose of removing debris or wreckage resulting from a major disaster. . . .”

4. Two Prerequisites to Suit against FEMA, Other Federal Agencies • Legal cause of action against the agency, i.e., a legally enforceable right to compel or prevent agency action. • Waiver of Sovereign Immunity allowing access to court to enforce that right.

5. Tucker Act28 U.S.C. § 1491 • Waiver of sovereign immunity but not creation of substantive rights. • Jurisdiction to United States Court of Federal Claims. • Monetary claims not involving tort – primarily contract claims (under federal common law of contracts), but also constitutional and federal statutory claims, and claims arising under agency regulations. • Concurrent jurisdiction with District Courts on federal bid protests. • Little Tucker Act - 28 U.S.C. § 1346 – claims under $10,000, concurrent jurisdiction to the Court of Federal Claims and the District Courts.

6. Contract Disputes Act 41 U.S.C. § 601 et seq. • Claims on federal procurement contracts first must be submitted for decision to an agency contracting officer. The officer’s decision is final unless a timely appeal is taken to the agency’s board of contract appeals or the contractor brings a timely suit in the Court of Federal Claims. • Either the contractor or the government may appeal a decision of the board of contract appeals to the Court of Appeals for the Federal Circuit.

7. Federal Tort Claims Act28 U.S.C. § 2671 et. seq. and 28 U.S.C. § 1346(b)(1) • 28 U.S.C. § 2674 -“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” • 28 U.S.C. § 1346(b)(1) - gives exclusive original jurisdiction to district courts over tort claims where the government, if a private citizen, would be liable under the law of the place where the act or omission occurred. • In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law.

8. Federal Tort Claims Act(continued) • 28 USC § 2675 - “An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing. . . .” • 28 USC § 2678 - Contingent fee limitation: 25% on judgments or settlements after suit; 20% on administrative resolution.

9. Federal Tort Claims Act(continued) • 28 U.S.C. § 2680 – Immunity Retained for Discretionary Acts. “Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

10. Adminstrative Procedures Act5 U.S.C.A. § 551, et. seq. • § 701(a): “This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” • § 702: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

11. Adminstrative Procedures Act(continued) • § 706: “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;

12. Adminstrative Procedures Act(continued) § 706(2) (continued) (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; • (D) without observance of procedure required by law; • (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or • (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”

13. Freedom of Information Act5 U.S.C. § 552 • § 552(a)(3)(A) “. . . each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” • § 552(a)(4)(A)(i) “In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures . . . .”

14. Freedom of Information Act(continued) • § 552(a)(4)(A)(iii) “Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” • § 552(a)(4)(B) “On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”

15. Freedom of Information Act(continued) • § 552(a)(6) Agency has twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of request to determine whether it will comply and notify the requester of its decision. If the requester appeals an adverse decision to the head of the agency, the agency has twenty days, exclusive of holidays, to decide the appeal. In unusual circumstances, the agency can extend its response time ten working days to by written notice to the requester. If the agency does not comply within the time limits, the requester is deemed to have exhausted his administrative remedies and may sue. However, the Court can give the agency extra time to complete its review of the records if warranted by exceptional circumstances.

16. Freedom of Information Act(continued) • § 552(a)(6)(D) Each agency may promulgate regulations providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests. DHS regs allow its “components” to do this, and FEMA uses simple and complex tracks. Complex track requests get buried. • § 552(a)(6)(E) Agencies must provide for expedited processing in the case of compelling need and other situations it chooses. Compelling need is defined as a situation where information needed to protect life or safety or “with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.”

17. St. Tammany Parish v. FEMA556 F.3d 307, C.A.5 (La.), January 22, 2009 • FEMA denied funding for post-Katrina debris removal (sediment) in St. Tammany canals • Parish claims: • Stafford Act debris removal funding provisions and FEMA policies • FTCA – negligent decision making • APA – invalid rulemaking without notice/comment • Stafford Act right to appeal • Stafford Act Sec. 308 (42 U.S.C. § 5151) - nondiscrimination, fair and impartial relief distribution

18. St. Tammany Parish v. FEMA(continued) • FEMA: Sovereign Immunity Bar • 42 U.S.C.A. § 5148: “The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter.”

19. St. Tammany Parish v. FEMA • FEMA’s argument (continued) • “any activity of the United States undertaken to carry out the provisions of the Stafford Act will necessarily trigger § 5148 Stafford Act immunity.” • § 5148 should bar any claim with a “propinquity to a disaster” and a “close substantive nexus to disaster assistance.”

20. St. Tammany Parish v. FEMA • St. Tammany: Sovereign Immunity Waived • Stafford Act • FTCA • APA

21. St. Tammany Parish v. FEMA • Fifth Circuit: • Stafford Act does not waive immunity but FTCA and APA do contain waivers. • 42 U.S.C. § 5148 does not necessarily bar any claim related to FEMA’s Stafford Act duties. • “Discretionary Function” under § 5148 means the same as the cases give the term under the FTCA.

22. St. Tammany Parish v. FEMA • Fifth Circuit (continued): • Two part test of U.S. v.Gaubert, 499 U.S. 315, 111 S.Ct. 1267 and Berkovitz v. U.S.,486 U.S. 531, 108 S.Ct. 1954 • Conduct of the federal employee involves judgment or choice, and • The judgment or choice is based on considerations of policy. Assuming the regulation allows discretion, the choice is presumed to be based on the policies underlying the regulation.

23. St. Tammany Parish v. FEMA • Fifth Circuit (continued): • Stafford Act § 407 (42 U.S.C. § 5173) says the President “is authorized” to make grants for debris removal. • 44 C.F.R. § 206.224(a) - “the Regional Director may provide assistance for the removal of debris. . . .” • FEMA DAP 9523.13 (10/23/05) said FEMA had “authority” to fund private property debris removal and it “may” be in the public interest.

24. St. Tammany Parish v. FEMA • Fifth Circuit (continued): • A memorandum by FEMA’s Director of Recovery Area Command generally declaring private debris removal in St. Tammany to be in the public interest did not require funding of private property debris removal in a particular instance. • PW funding some debris removal from the canals did not mean all debris needed to be removed.

25. Fifth Circuit (continued): “funding decisions related to the extent of debris removal that is necessary to protect improved property, public health, and safety are exactly the type of public policy considerations that § 5148 shields from judicial scrutiny.” St. Tammany Parish v. FEMA

26. St. Tammany Parish v. FEMA • Fifth Circuit (continued): • “Eligibility determinations, the distribution of limited funds, and other decisions regarding the funding of eligible projects are inherently discretionary and the exact types of policy decisions that are best left to the agencies without court interference.”

27. St. Tammany Parish v. FEMA • Fifth Circuit (continued): • “[T]he discretionary function exception does not apply ‘if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive,’” citing Berkovitz. • § 5148, unlike FTCA, does not specifically say immunity retained even if discretion abused. St. Tammany did not argue abuse of discretion.

28. St. Tammany Parish v. FEMA • Suppose “statute, regulation, or policy specifically prescribes a course of action”? • Graham v. FEMA, 149 F.3d 997 (9th Cir. 1998) Typhoon victims could sue under APA over FEMA decision to withdraw funds from approved relief program on basis that state failed to comply with grant conditions. The regulations gave discretion to withdraw, but only if state failed to comply.

29. St. Tammany Parish v. FEMA • Constitutional violations reviewable. • McWaters v. FEMA, 436 F.Supp.2d 802 (E.D.La. 2006) § 5148 does not insulate FEMA from claims based on constitutional violations. • FEMA lacks discretion to violate contracts. • Dureiko v. U.S., 209 F.3d 1345 (Fed. Cir. 2000) “[O]nce FEMA entered into a contract . . . its acts pursuant to this contract no longer involved an element of judgment or choice. . . [A] contract is indistinguishable from a federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow, since “the employee has no rightful option but to adhere to [its] directive[s].”

30. Arbitration • Sec. 601. Notwithstanding any other provision of law, the President shall establish an arbitration panel under the Federal Emergency Management Agency public assistance program to expedite the recovery efforts from Hurricanes Katrina and Rita within the Gulf Coast Region. The arbitration panel shall have sufficient authority regarding the award or denial of disputed public assistance applications for covered hurricane damage under section 403, 406, or 407 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b, 5172, or 5173) for a project the total amount of which is more than $500,000.