United States District Court, District of Columbia
P. Mehta United States District Judge.
2015 and early 2016, a series of massive storms devastated
the State of Texas, causing millions of dollars in property
damage and, tragically, dozens of casualties. In response,
the Federal Emergency Management Agency
(“FEMA”)-the agency charged with administering
federal disaster relief-mobilized efforts to provide
assistance to the affected individuals. This case arises out
of those efforts.
President and, correspondingly, FEMA, derives the statutory
authority to provide disaster relief from the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, 42
U.S.C. §§ 5121-5206 (“Stafford Act”).
In 2000, Congress amended the Stafford Act to enable FEMA to,
among other things, provide direct assistance to individuals
under the Individuals and Households Program
(“IHP”), including financial assistance for home
repairs. Under the IHP, FEMA may directly provide federal
grants to qualified applicants, rather than require those
individuals to seek those grants through federally
subsidized, state-run disaster relief funds. The IHP
amendments tasked FEMA with designing and implementing the
federal grant program, in part, by issuing rules and
regulations governing the program. FEMA subsequently issued a
set of rules and regulations purporting to do just that.
include 26 individuals whose homes were severely damaged
during the 2015- 2016 storms, and applied to FEMA for home
repair assistance under the IHP, but had their applications
denied, in whole or in part. Plaintiffs claim that FEMA
violated federal law when it chose to disclose neither the
legal standards it used to evaluate their applications nor
the reasons for denying them full relief. So, Plaintiffs
filed this suit to compel FEMA to articulate those standards,
to shed light on the IHP process, and to reconsider their
applications. Specifically, Plaintiffs charge FEMA with (1)
failing to comply with its congressional mandate under the
Stafford Act to promulgate regulations that “carry
out” the IHP, 42 U.S.C. § 5174(j), and (2) relying
on “secret rules” in non-public documents to deny
their IHP applications in violation of 5 U.S.C. §
552(a)(1). For relief, Plaintiffs ask the court to order FEMA
to promulgate regulations that (1) define the eligibility
criteria for home repair assistance relief under the IHP, (2)
detail the process for appealing application denials, and (3)
insure the equitable and impartial administration of the IHP.
Additionally, Plaintiffs ask the court to order FEMA to
reconsider their applications under these new regulations.
the court is Defendants' Motion to Dismiss and
Plaintiffs' Motion for Summary Judgment. Defendants move
to dismiss the Complaint on the ground that the court lacks
subject matter jurisdiction, because the United States has
not waived its sovereign immunity from suit. Defendants point
to the Stafford Act's “discretionary function
exception, ” which bars federal courts from reviewing
FEMA's discretionary decisions. Defendants contend that
the agency's decisions concerning the content and
specificity of its regulations are discretionary and,
therefore, cannot be the subject of judicial review.
See 42 U.S.C. § 5148. Further, Defendants argue
that, even if the court has jurisdiction, Plaintiffs have
failed to state a claim for relief because its IHP rules and
regulations, as currently constituted, do exactly what
Congress commanded. Expectedly, Plaintiffs view FEMA's
actions, or inaction, differently. They contend that the
court has jurisdiction because FEMA's regulations are not
covered by the Act's discretionary function exception.
They also assert that FEMA has not, as Congress directed,
promulgated the necessary regulations to implement the IHP.
On that basis, Plaintiffs move for summary judgment on Counts
I-III of their Complaint, seeking a judgment in their favor
that FEMA violated federal law by issuing deficient
given careful consideration to the parties' arguments,
the court agrees with Defendants that the Stafford Act's
discretionary function exception bars Plaintiffs'
challenge to FEMA's IHP rulemaking. Accordingly, the
court grants Defendants' Motion to Dismiss and denies
Plaintiffs' Motion for Summary Judgment.
Statutory and Regulatory Background
passed the Stafford Act (“the Act”), originally
known as the Disaster Relief Act of 1974, to provide federal
assistance when disaster strikes. See 42 U.S.C.
§ 5121 et seq. The Act authorizes the President to
declare a major disaster and, where appropriate, direct
“[f]ederal agencies . . . [to] provide assistance
essential to meeting immediate threats to life and property
resulting from [the] major disaster.” Id.
§ 5170b(a). The President is authorized to delegate his
authority under the Act to a federal agency, see id.
§ 5164, which President George H.W. Bush did in 1989,
delegating most of that authority to the Federal Emergency
Management Agency (“FEMA”), which is now part of
the Department of Homeland Security (collectively,
“Defendants”). Exec. Order No. 12, 673:
Delegation of Disaster Relief and Emergency Assistance
Functions, 54 Fed. Reg. 12, 571, § 1 (Mar. 23, 1989).
FEMA, in turn, is responsible for promulgating the
regulations necessary to implement the Act's provisions,
including those regulations that Plaintiffs challenge in
lawsuit concerns FEMA's “Individuals and Households
Program” (“IHP”). The IHP authorizes the
President, through FEMA, to provide direct federal assistance
to disaster-affected individuals, as opposed to indirect
assistance through federally subsidized state disaster relief
funds. 42 U.S.C. § 5174. The Act includes three general
eligibility requirements to receive IHP aid: (1) the affected
home must be owner-occupied, (2) the damages must be
disaster-related, and (3) the repairs must be necessary to
return the affected home to sanitary and safe living
conditions. Congress said no more about eligibility criteria.
Instead, it directed FEMA to “prescribe rules and
regulations to carry out [the IHP], including criteria,
standards, and procedures for determining eligibility.”
Stafford Act and its amendments direct FEMA to fill in
specifics concerning two other statutory provisions that
implicate the IHP. First, the Act requires FEMA to
“issue . . . . such regulations as may be necessary . .
. for insuring that the” IHP is “accomplished in
an equitable and impartial manner, without discrimination on
the grounds of race, color, religion, nationality, sex, age,
disability, English proficiency, or economic status.”
Id. § 5151(a). Second, it directs FEMA to
“issue rules which provide for the fair and impartial
consideration of appeals” from any denial of disaster
relief, including under the IHP. Id. §
Promulgated to “Carry Out” the IHP
has issued rules and regulations intended to “carry
out” the IHP, which are contained in sections 206.110
through 206.120 of Chapter 44 of the Code of Federal
Regulations. See 44 C.F.R. §§ 206.110-120.
The court here focuses on those sections relevant to the
provision of housing assistance. Section 206.110, among other
things, sets the maximum amount of assistance a qualified
individual may receive, identifies the types of assistance
available, fixes the date of eligibility, defines the period
of assistance, and places certain limitations and conditions
on assistance recipients. Id. § 206.110.
Section 206.111 provides definitions of terms used in the
relevant regulations. Id. § 206.111. Section
206.112 sets application deadlines following a disaster
declaration, including provisions governing extensions of
time and late applications. Id. § 206.112.
206.113, entitled “Eligibility Factors, ” lists
both qualifying and disqualifying factors for disaster
assistance under the IHP. Subsection (a) lists nine
“conditions of eligibility, ” five of which
address when assistance is available to an applicant who has
insurance. Id. § 206.113(a)(2)-(6). Two other
factors specifically address that housing assistance is
available (1) when “the primary residence has been
destroyed, is uninhabitable, or is inaccessible, ” or
(2) when “a renter's primary residence is no longer
available as a result of the disaster.” Id.
§ 206.113(a)(8)-(9). Subsection (b) lists ten
“conditions of ineligibility, ” the first five of
which address housing assistance. For instance, individua ls
do not qualify if they are displaced from properties other
than their pre-disaster primary residence (e.g., a vacation
home). Id. § 206.113(b)(1). Additionally, those
individuals who have “adequate rent-free housing
accommodations, ” a “secondary or vacation
residence within reasonable commuting distance to the
disaster area, ” or a “rental property that meets
their temporary housing needs, ” likewise are
ineligible to receive housing assistance. See Id.
§§ 206.113(b)(2), (b)(3). Lastly, individuals who
have adequate insurance coverage, and receive timely
compensation for their damage from their insurer, do not
qualify for housing assistance. Id. §
206.117 addresses the types of housing assistance available
under the IHP. Qualified applicants may receive financial
assistance for temporary housing, direct assistance in the
form of purchased or leased temporary housing, and financial
assistance for the repair or replacement of real property.
Id. § 206.117(b)(1)-(3). As to each of those
types of assistance, Section 206.117 outlines additional
requirements or eligibility factors, see, e.g.,
id. §§ 206.117(b)(1)(i), (b)(2)(i),
(b)(3)(i), and identifies the component parts of
applicants' homes that, if damaged, qualify for repair
assistance. See id. § 206.117(b)(2)(ii).
Regulations Concerning Appeals from Adverse Decisions
to congressional directive, see 42 U.S.C. §
5189a, FEMA also has “issue[d] rules which provide for
the fair and impartial consideration of appeals[.]”
Section 206.115 sets forth instructions and procedures for
appealing assistance decisions made under the IHP. The
section provides that an appeal must be filed within 60 days
and enumerates the types of decisions that can be appealed.
44 C.F.R. § 206.115(a). It further instructs what an
appeal petition must include, identifies to whom an appeal
should be directed, and sets a 90-day deadline for FEMA or
the State to provide a written disposition of an appeal.
Id. at §§ 206.115(b), (c), (f). The
regulation also permits an applicant to “ask for a copy
of information in his or her file by writing to FEMA or the
State as appropriate.” Id. at §
206.115(d). Lastly, the regulation declares that the
“decision of the appellate authority is final.”
Id. at § 206.115(f).
Regulations Concerning Nondiscrimination in Disaster
Section 206.11 addresses Congress' direction to
“issue . . . such regulations as may be
necessary” to provide disaster assistance in a
nondiscriminatory manner. See 42 U.S.C. § 5151.
That regulation requires that “[a]ll personnel carrying
out Federal major disaster or emergency assistance functions
. . . shall perform their work in an equitable and impartial
manner, without discrimination on the grounds of race, color,
religion, nationality, sex, age, or economic status.”
44 C.F.R. § 206.11(b). It also requires
“government bodies and other organizations [to] provide
a written assurance of their intent to comply with
regulations relating to nondiscrimination.”
Id. § 206.11(c).
Factual and Procedural Background
include 26 Texas residents whose homes were damaged in a
series of severe storms in 2015 and 2016 (“Individual
Plaintiffs”) and whose IHP applications FEMA denied
either in whole or in part. Compl., ECF No. 1 [hereinafter
Compl.], ¶¶ 9, 75. Also bringing suit against FEMA
is La Union del Pueblo Entero, a non-profit organization
dedicated to assisting low-income families apply for
government assistance. See Id. ¶ 10.
filed this matter on September 15, 2016, seeking judicial
review of FEMA's IHP rulemaking under the Administrative
Procedure Act (“APA”). Id. ¶ 79.
Plaintiffs' first three claims allege that FEMA has
violated congressional directives by (1) “failing to
adopt regulations needed to carry out [the IHP], including
criteria, standards, and procedures for determining
eligibility for assistance, ” as required under 42
U.S.C. § 5174(j) (Count I), id. ¶¶
81-85; (2) “failing to adopt regulations that insure
equitable and impartial IHP administration, ” as
required under § 5151(a) (Count II), id.
¶¶ 86-88; and (3) “failing to adopt
regulations that provide for fair and impartial consideration
of appeals, ” as required under § 5189a(c) (Count
III), id. ¶¶ 89-90. Plaintiffs also assert
that FEMA uses “unpublished rules that adversely affect
applicants” in violation of 5 U.S.C. § 552(a)(1)
(Count IV). Id. ¶¶ 91-95. Plaintiffs seek
an order compelling Defendants to (1) promulgate more
detailed regulations concerning how FEMA makes IHP
eligibility and award decisions, (2) cease from using
unpublished rules in making such decisions, and (3)
reconsider Plaintiffs' disaster relief applications
without the use of rules that were unpublished at the time
FEMA denied their applications. Id. ¶ 96.
move to dismiss the Complaint. They contend that (1) the
court lacks subject matter jurisdiction to hear
Plaintiffs' claims under Rule 12(b)(1) of the Federal
Rules of Civil Procedure and (2) Plaintiffs failed to state a
claim for relief under Rule 12(b)(6). See Defs.'
Mot. to Dismiss, ECF No. 4, Mem. in Supp., ECF No. 4-1
[hereinafter Defs.' Mot]. Defendants assert that the
court lacks subject matter jurisdiction because the United
States has not waived its sovereign immunity in this context.
To support that position, Defendants point to the Stafford
Act's “discretionary function exception, ”
which provides that 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.” Id. at
7-13; 42 U.S.C. § 5148. Additionally, Defendants argue
that Plaintiffs have failed to state a claim under the APA
because the challenged regulations are permissible
interpretations of the Stafford Act's directives.
Defs.' Mot. at 16-21.
both oppose Defendants' Motion, see Pls.'
Opp'n to Defs.' Mot., ECF No. 5 [hereinafter
Pls.' Opp'n], and move for partial summary judgment,
see Pls.' Mot. for Partial Summ. J., ECF No. 8
[hereinafter Pls.' Mot.]. Taking both motions together,
Plaintiffs argue that the “regulations” FEMA has
promulgated do not satisfy the congressional directive to
issue or prescribe rules or regulations to implement the IHP.
Compl. ¶¶ 82, 87, 90. Moreover, because Congress
commanded FEMA to act, its failure to do so ...