Applicants for federal disaster assistance under the various programs administered by the Federal Emergency Management Agency (FEMA) are not without recourse when FEMA denies or determines to later take back (deobligate) funding. Applicants, however, should be mindful of the agency's heightened enforcement of appeals deadlines. Recently, FEMA issued a number of decisions demonstrating strict enforcement, against applicants, of both the 60-day deadline for filing of appeals and the 60-day deadline for State grantees to forward the appeals to FEMA. At the same time, FEMA continues to struggle with compliance with its own 90-day deadline.
Under the Stafford Act, applicants have a statutory "right of appeal" of "any decision regarding eligibility for, from, or amount of assistance" provided under the Act, but this right should be exercised "within 60 days after the date on which the applicant for such assistance has been notified of the award or denial of award." FEMA's regulations require that an applicant file its appeal through the State grantee and that, within 60 days of receipt, the grantee then "review and forward" the applicant's appeal to FEMA with a recommendation. Within 90 days of receipt of the appeal from the grantee, this same regulation requires FEMA to decide the appeal or request further information/seek additional technical assistance.
Historically, FEMA seems to have considered compliance with the applicable deadlines liberally, especially in the days and years following truly catastrophic disasters. However, those days of leniency may be a thing of the past. Here are some examples, all from the last six months, of how FEMA's strict enforcement of deadlines affected applicants' federal disaster assistance funding.
Failure by either the applicant or the grantee to comply with [the deadline] requirements renders the appeal untimely and the Applicant's appeal rights lapse. Neither the Stafford Act, nor FEMA's regulations, authorize FEMA to grant time extensions for filing appeals.
FEMA appears to have considered the merits of the applicants' appeals in the first two examples and notes substantive issues in addition to those associated with timeliness. However, the merits discussion appears to have been immaterial to the outcome given FEMA's assertion that "FEMA is precluded by the Stafford Act and regulation" from extending the time to file appeals. Indeed, in the latter two examples, FEMA does not even appear to have considered the merits – the timeliness issues hence killed any chance of recovery.
The appeal filing deadline has also proved troublesome when the date an appeal is "received" is unclear. FEMA has taken a number of different positions on when the 60-day appeal (and 30-day arbitration) deadline begins to run:
Therefore, applicants should be mindful and consistently document receipt of all determinations.
While FEMA's strict enforcement of an applicant's 60-day appeal deadline is supportable by both the Stafford Act and FEMA's regulations, we do not find similar support for FEMA's conclusion that it cannot consider appeals if the State fails to forward the appeal timely. There is no statutory provision imposing this deadline; the statute does not even contemplate the State grantee's role in the appeal process. Further, the regulatory language specifying the deadline applicable to the State grantee is different from that specifying the applicant's deadline: "Appellants must file within 60 days" versus the "grantee will review and forward … within 60 days." If FEMA has no discretion to extend the deadline for grantees to forward appeals – as FEMA has asserted in its recent decisions – what does that say about FEMA's failure to decide appeals, or to request additional information, within 90 days of receipt? The regulation uses identical language ("will") for FEMA's and the grantees' deadlines.
If an applicant wants to preserve its appeal rights, it must file an appeal within 60 days of receipt of FEMA's determination. If the applicant is unsure of the deadline, file early. Applicants should consistently document receipt of all determinations. Finally, ensure that the State grantee complies with its deadline so that FEMA receives your timely filed appeal.