governors office of homeland security & emergency preparedness
TRANSCRIPT
Governor’s Office of Homeland Security & Emergency Preparedness
INTRODUCTION
Greetings and our thanks for attending
Mark Cooper, Director
Mark Riley, Deputy Director
Pat Santos, Assistant Deputy Director Operations
Clay Rivas, Assistant Deputy Director Homeland Security
Brandt Mitchell, Assistant Deputy Director Interoperability and Support Services
Mark DeBosier, Assistant Deputy Director Disaster Recovery
Instructors
•John Gonzales, State Public Assistance Officer•Casey Levy, State Hazard Mitigation Officer•Fred Garner, State Debris Manager•Chris Guilbeaux, Operations Section Chief•Jim Ballow, Assistant Operations Section Chief•Rick Moore, GOHSEP Intelligence Officer•Tara Walker, State Applicant Liaison•Sean Wyatt, Grants Administrator•Katie Wesley, Grants Administrator•Glen Kent, Attorney and OEP Director, East Feliciana Parish•Michael Gaffney, Attorney•Pepper Allgood, Attorney•Sarah Brehm, Attorney•Dan Davis, Attorney•Lynn Wiltz, Attorney•Ben Plaia, Executive Counsel, GOHSEP
WHY are you here?
Katrina, August 29, 2006
Lakeview (17th St. Canal), New Orleans
9th Ward, New Orleans
Emergency Management Law Seminar Agenda
•It’s Emergency Management Live
•Introduction to the Emergency Management Process, Law and Policy
•Lifecycle of an Emergency/Disaster and Corresponding Law, Regulations and Policy
•Overview of:•Louisiana Homeland Security and Emergency Assistance and Disaster Act•Louisiana Health Emergencies Act
•Overview of 44 CFR
•Litigating with FEMA in the aftermath of St. Tammany vs. FEMA
Rules of the Road
•GOHSEP attorneys do not represent parishes, municipalities or PNPs
•GOHSEP attorneys do not give legal opinions to any representative from a parish, municipality or PNP
•GOHSEP attorneys have the obligation to provide support to an attorney representing any parish, municipality or qualified PNP
•Your boss needs an attorney knowledgeable in emergency management law
Legal Issues Impacting Parish Directorsor
“It’s Emergency Management Live”
Featuring:
Glen Kent as the exasperated, over-worked parish emergency operations director
Mike Gaffney, the brash, cocky parish attorney who Glen hopes knows it all
And
A cast of lively characters to add realism and a bit of humor
Prepatory Phase
Emergency Operations PlanReview for operability
POD locationsReview for legal sufficiency
Prepatory Phase
1) Development of Service Contracts with fuel suppliers, food stores, etc. to provide fuel, food, etc. to the parish –
2) Development of Property Contracts for storage, distribution, etc. –
Public Bid Laws Federal Laws for Reimbursement Pre-prepared contracts Dual Contracts
Prepatory Phase
Overtime PoliciesFEMA requirement
Prepatory Phase
Cost Documentation Policy
Prepatory Phase
Debris Removal Contracts
Prepatory Phase
Declaration of Emergency When to declare
• Emergency powers conferred• EOC activated• Response phase initiated
Proper format Proper declarant
• Parish• Municipality
Area covered by declaration Duration
Prepatory Phase
Emergency powers compared Director of Emergency Preparedness Parish President Power to utilize parish employees and
property• Power to utilize municipal employees and
property
Sheriff Mayors Police chiefs
Response Phase
Declaration of Curfew When to declare
• Effect
Proper format Proper declarant
• Parish
• Municipality
Area covered by declaration Duration Responsibility of Citizens
Response Phase
Order to Evacuate When to declare
• Effect Proper format
• Voluntary• Mandatory• Enforced
Proper declarant• Parish• Municipality
Area covered by declaration Duration Responsibility of Citizens
Response Phase
Executive orders issued by the Parish PresidentPossible suspension of existing parish ordinances
Response Phase
Immunity for VolunteersFirst responders
Government employees
Private citizens
Willful/Negligent
Recovery Phase
Cost documentation Firemen
Policemen
Volunteers
Recovery Phase
Legal considerations regarding the initial PA 25% FEMA matching fundThe importance of initial assessments
The importance of in-kind match
Recovery Phase
Debris Removal ConsiderationsBid requirements
Private property considerations
Legal responsibility of parish officials
Mitigation
Legal implications of grant accountabilityFunds received
Equipment purchased
Mitigation
What is the Parish Director’s responsibility regarding items procured with grants?
Introduction to The Emergency Management Process, Law, Policy and Regulation
•The FEMA – State Relationship•The Emergency Management Process•The UCG/ESF/EOC function and relationship to local jurisdiction•State Law, Regulation and Executive Orders•Federal Law and Regulations•Federal Policy•FEMA Policy•FEMA Publications
The FEMA – State Relationship
•Pre-Disaster
•Response
•Recovery•DIFFICULT•capricious•arbitrary
•St. Tammany Parish v. FEMA2009 WL 146582, C.A.5 (La.), January 22, 2009
LEGEND
Status FeedbackRequest for Support
State Operations
State Operations
State Agency Assets
State Agency Assets
ESF Contracts
Rents etc.
ESF Contracts
Rents etc.
ParishEOC
ParishEOC
Parish AssetsParish Assets
Contracts Rents
etc.
Contracts Rents
etc.
FederalAssistance
FederalAssistance
EMACState
To State Assets
EMACState
To State Assets
The Emergency Management Process
All Emergencies are local!
ParishEOC
Parish Assets
Contracts Rents
etc.
Local governments must plan to handle emergencies on the local level by using local assets, renting equipment, and through the use of contracts.
Receives, Validates, Authorizes &
Tracks Support
Maintain Linkage
When Emergencies exceed local When Emergencies exceed local capabilities…..capabilities…..
Provides Support & Tracks
Request For Support Provide SITREP
Request MethodologyPrimary: WebEOCOther: FAX, Phone, E-mail,800 mhz, Satellite phone
Emergency Support Functions
ESF #1 - Transportation ESF #2 - Communications ESF #3 - Public Works and Engineering ESF #4 - Firefighting ESF #5 - Emergency Management ESF #6 - Mass Care, Housing, and Human Services ESF #7 - Resource Support ESF #8 - Public Health and Medical Services ESF #9 - Urban Search and Rescue ESF #10 - Oil and Hazardous Materials Response ESF #11 - Agriculture and Natural Resources ESF #12 - Energy ESF #13 - Public Safety and Security ESF #14 - Long-Term Community Recovery and
Mitigation ESF #15 - External Affairs ESF #16 - LANG
StateUnified
Command Group
Unified Commander (Governor)Deputy Unified Commander (GOHSEP Director)
Lead Agency Secretaries ESF
Secretary of Transportation & Development ESF- 1 & 3 Superintendent of State Police ESF-2, 10, 13The Adjutant General ESF- 2, 7, 16 Commissioner of Agriculture ESF- 4 & 11Secretary of Social Services ESF- 6Secretary of Public Safety ESF- 6Commissioner of Administration ESF- 7Secretary of Health & Hospitals ESF-8LSU Health Sciences ESF-8Secretary of Wildlife & Fisheries ESF-9Secretary of Environmental Quality ESF-10Secretary of Natural Resources ESF-12Public Service Commission ESF-12The Attorney General ESF-13Governor’s Oil Spill Coordinator ESF-10
Unified Command StaffESF-5, ESF-14 (SCO)ESF-15 (Joint Information Center)
Legislative Liaison
Lead Agency Secretaries ESF
Parishes and municipalities should strive to have a unified command structure similar to the State’s
Category Type of Work
Emergency Work A Debris Removal
B Emergency Protective Measures
Permanent Work C Roads and Bridges
D Water Control Facilities
E Buildings and Equipment
F Utilities
G Parks, Recreations Facilities and Other
State Law, Regulations and Executive Orders
State Law•The Louisiana Homeland Security and Emergency Assistance and Disaster Act (LRS 29:721-738)
•The Louisiana Health Emergency Powers Act (LRS 29:760-772)
•Governor’s Executive Orders•EO BJ 2008-32 Emergency Operations Plan•EO BJ 2008-45 Establishment of Unified Command Group and Subcommittees•EO BJ 2008-40 NIMS•Other necessary EOs
•State Emergency Operations Plan and Annex (Corresponding Local EOP)
•Emergency Regulation
•State Bid Law
•State Ethics Code
•Interim Emergency Board (LA Constitution, Amendment 7, Section 7; LRS 39:461)
Federal Law and Policy
•The Stafford Act (42 USC 5121 et seq.)
•44CFR Emergency Management and Assistance •Section 7.7 and 7.10 Compliance•Section 13.36 Procurement•Section 206 Public Assistance
•FEMA 9500 Series
•Disaster Specific Guidance (DSG)
•National Incident Management System (NIMS)
•National Response Framework (NRF)
FEMA Publications and Independent Self Study
•FEMA 321 Public Assistance Digest•FEMA 322 Public Assistance Guide•FEMA 323 Public Assistance Applicant’s Handbook (Draft)•FEMA 325 Debris Management Guide
•IS 700 NIMS Introduction•IS 800 National Response Framework Introduction•IS 100, 200 Incident Command System•Electives•IS 208 State Disaster Management•IS 230 Principles of Emergency Management•IS 235 Emergency Planning•IS 630 Introduction to the PA Process
www.fema.gov
Lifecycle of an Emergency/Disaster
and
Corresponding Laws and Regulations
The Lifecycle Of An Emergency/Disaster
Activation of State EOC
Activation of State EOC
Activation of Local EOCs Activation of Local EOCs
Governor Declares State Of Emergency
Governor Declares State Of Emergency
EmergencyOperationsContinue
EmergencyOperationsContinue
Activation Of Pre-qualified
Contracts
Activation Of Pre-qualified
Contracts
Local Damage Assessment
Local Damage Assessment
Anticipated Anticipated EventEvent
Anticipated Anticipated EventEvent
Activation of UCGActivation of UCG
Issuance Of Proclamations
& Executive Orders
Issuance Of Proclamations
& Executive Orders
Issuance of Local Proclamations &
Executive Orders
Issuance of Local Proclamations &
Executive Orders
Gov. Requests EmergencyPresidential Declaration
Gov. Requests EmergencyPresidential Declaration
EmergencyOperationsOn-going
EmergencyOperationsOn-going
PD Granted For Cat B & DFA
PD Granted For Cat B & DFA
PD Denied PD Denied
EventEventEventEvent
Locals Use/ExhaustResources
Locals Use/ExhaustResources
Locals RequestResources
From State EOC
Locals RequestResources
From State EOC
State RespondsTo Local’s
Resource Request
State RespondsTo Local’s
Resource Request
Joint Damage Assessment Teams
(FEMA/State/Local)
Joint Damage Assessment Teams
(FEMA/State/Local)
Gov. RequestsPD For
Major Disaster
Gov. RequestsPD For
Major Disaster
Disaster AssistanceDelivered
(PA/IA/HMGP)
Disaster AssistanceDelivered
(PA/IA/HMGP)
PD GrantedPD Granted
PD DeniedOr Not
Required
PD DeniedOr Not
Required
Appeal
IEB
Appeal
IEB
TrainingTraining AssessmentsAssessments MOU’sMOU’s ContractsContracts CEA’sCEA’s
Appeal
IEB
Appeal
IEB
State/Federal Local Response Phase Preparation Phase Recovery Phase
The Lifecycle Of An Emergency/Disaster
Applicant Briefing With State
Applicant Briefing With State
FEMA/State Agreement
FEMA/State Agreement
Interim Compliance Reviews by GOHSEP Interim Compliance
Reviews by GOHSEP Project Completion
/Closeout Project Completion
/Closeout
State/Federal Local Response Phase Preparation Phase Recovery Phase
Applicant Request For Public
Assistance
Applicant Request For Public
Assistance
FEMA KickoffMeeting
FEMA KickoffMeeting
Preparation of Project Worksheets
Preparation of Project Worksheets
FEMA Obligates
Funds
FEMA Obligates
Funds
PW Approved by FEMA
PW Approved by FEMA
FEMA Denies PW
FEMA Denies PW
Applicant Appeals
Applicant Appeals
PW Assigned to Disaster Recovery
Specialist
PW Assigned to Disaster Recovery
Specialist
END
Activity
PREPARATION
Corresponding Law, Regulation, Policy or Executive Order and Comments
Training
Assessments Find your gaps
Memorandum of Agreement (MOA)
Also called Memorandum of Understanding (MOU); is not a contract
Contracts
Pre-bid or pre-qualified
Procurement: LRS 39:1551 et seq; 44CFR13.36 Monitoring: 44CFR13.40 Contract contents: LRS 39:1498.1; 44CFR13.36 “YOU ARE A RISK MANAGER”
Cooperative Endeavor Agreements
Also called an Interagency Agreement; Constitutional authority (Article 7, Section 14); LRS 33:9038.35; EO BJ 2008-29 to spend or transfer public funds; LLA CEA Memo and Form
Activity
RESPONSE
Corresponding Law, Regulation, Policy or Executive Order and Comments
Governor declares state of emergency
LHSEADA LRS 29:724(B)(1)
Activation of State EOC
Activation of UCG
LHSEADA LRS 29:724(C)(1);State EOP
Issuance of Proclamations and Executive Orders
LHSEADA LRS 29:724(D)(1)
Activation of Local EOCs
LHSEADA LRS 29:727(E); Local EOP
Issuance of local proclamations and EOs
LHSEADA LRS 29:727(F)(1)
Gov requests Emergency PD
44 CFR 206.35; FEMA DAP 1001; must meet all the requirements stated in the regulation and the DAP
PD Granted for Category B and DFA
FEMA DAP 1001
PD Denied Appeal to FEMA: 44 CFR 206.46(a); Interim Emergency Board LRS 39:461; IEB Policies and Procedures
Activity
RECOVERY (1)
Corresponding Law, Regulation, Policy or Executive Order and Comments
Preliminary Damage Assessment
44 CFR 206.33; important that the local jurisdiction identifies all damages prior to arrival of State/FEMA team
Locals use resources Local EOP
Locals request resources and state responds
State EOP
Joint Damage Assessment
44 CFR 206.33; damages must be verified by FEMA
Gov requests PD for major disaster
44 CFR 205.36; must meet all requirements in regulation; IA is subjective; PA $3.28 per capita for parish, $1.31 per capita for the State (FY 2009)
PD Granted 44 CFR 206.40; based on subjective and objective damage assessment, FEMA designates the affected areas and the eligible assistance
PD denied or not qualified
IEB and/or appeal to FEMA 44 CFR 206.46(a)
Activity
RECOVERY (2)
Corresponding Law, Regulation, Policy or Executive Order and Comments
Disaster Assistance Delivered
Individual Assistance (IA): 44 CFR 206.101-191; Louisiana an Option 1 State: FEMA administers IA with small exception
Public Assistance (PA): 44 CFR 200-253; FEMA 9570s Applicants: State and local governments, PNPs, Facilities: public facilities and infrastructure Cost: tied to performance of work and reasonableness and stated in 44CFR and 9500 series Work: Designated disaster area and legal responsibility Includes 406 hazard mitigation
Hazard Mitigation Grant Program (HMGP); 404 HM 44 CFR 430-440 Applies to non-damaged facilities; funding from a percentage of all disaster funding;
FEMA-State Agreement 44 CFR 206.44: understandings, commitments and obligations of FEMA and the State pursuant to major disaster declaration; Cost share 75/25; 90/10; 100
Applicant Briefing FEMA 322, pgs 91-92: State briefs applicant on PA program and applicant’s responsibilities
Activity
RECOVERY (3)
Corresponding Law, Regulation, Policy or Executive Order and Comments
Applicant request for Public Assistance
44 CFR 206.2029(c), FEMA 322, pgs 92-93; usually submitted at applicant’s briefing; 30 days from declaration or designation
Kickoff Meeting FEMA 322 pg 94, FEMA 9570.2; conducted by FEMA to address the applicant’s needs
Preparation of Project Worksheets
44 CFR 206.202(d), FEMA 322 pg 94-108; used to develop projects, damages, SOW, costs, special considerations
PW approved by FEMA 44 CFR 206.201(j), FEMA 321 pg 104; FEMA ensures project is in compliance with law and regulations
PW denied IEB and/or appeal to FEMA 44 CFR 206.46(b)
FEMA obligates funds 44 CFR 206.202(e)(2)
PW assigned to GOHSEP DRS
GOHSEP Policy: PW is reviewed, applicant reimbursed, project closed out, coordination with FEMA in between
The Louisiana Homeland Security and Emergency Assistance and
Disaster Act(The Act)
LRS 29:721-738
Categories of Discussion
•Powers of the Governor•Unified Command Group•Authority and Responsibility GOHSEP Director•Authority and Responsibility of GOHSEP•Authority and Responsibilities of Parish President•Authority and Responsibility of Parish Director•Authority and Responsibility of Parish Office•Authority and Responsibilities of Municipalities•Evacuation and Curfews•Inter-jurisdictional Assistance•Interstate Assistance (EMAC)•Immunities
Powers of the GovernorLRS 29:724
•Declare a state of emergency•Allows the exercise of extraordinary police powers to meet the challenges of the imminent or occurring disaster or emergency
State Unified Command GroupLRS 29:725.6
Executive Order BJ 2008-45
•Provides for a unified approach to emergency management•Strategic decision making body for emergencies•EO states the members
Authority and Responsibility of GOHSEP Director
LRS 29:725
•Responsible for carrying out homeland security and emergency management programs for the State•Coordinate the activities of all agencies and organizations•Coordinate with other states and the federal government•Authorized to adopt rules and regulations under the Administrative Procedures Act
Authority and Responsibility of GOHSEP
LRS 29:726
•Responsible for homeland security and emergency preparedness in the state•Prepare and maintain state Emergency operations plan•Assistance in development and revision of local and inter-jurisdictional emergency operations plans•Determine requirements for food, supplies, evacuation, sheltering•Plan for response and recovery operations•Provide for rapid communications during disaster/emergency
Authority and Responsibility of Parish Presidents
LRS 29:727
•ONLY Parish President (Police Jury President) has authority under the “Act”•Establishes and maintains the parish office of homeland security and emergency management•Has jurisdiction over and serves the entire parish•Appoints the parish homeland security and emergency manager director•Declares a state of emergency and corresponding proclamations and executive orders (mirrors Governor’s powers)
Authority and Responsibility of Parish Director
LRS 29:728
•Parish Director appointed by Parish President•Responsible for homeland security and emergency preparedness within the parish subject to the direction and control of the parish president and the general direction and control of the Governor and GOHSEP
Authority and Responsibility of Parish Office
LRS 29:729
•Responsible for homeland security and emergency preparedness in the parish•Prepare and maintain parish emergency operations plan•Responsibilities mirror GOHSEP as to requirements for food, supplies, evacuation and sheltering
Authority and Responsibility of Municipalities
LRS 29:730.2 and 737
•In event of emergency or disaster within the parish, municipalities shall provide available resources•In event of emergency within the municipality, chief executive officer has authority to respond •Authority and powers mirror Governor’s and Parish President•Shall notify Parish president•All additional assistance shall be requested thru the parish and not GOHSEP (GOHSEP Policy)
Evacuations and CurfewsLRS 29:730.3
•Authority of Governor: issue a forced evacuation for one or more parishes (if not issued by Parish President)•Authority of Parish President: Issue an evacuation order for all or part of the parish
•Voluntary: no imminent danger but may exist in near future•Mandatory: danger is imminent; lives in peril; no services or anticipation of rescue for those who stay•Forced: Not clear on what this means????? Forceable removal???
Inter-jurisdictional AssistanceLRS 29:730 and 730.1
•Allows two or more parishes to establish regional organizations for homeland security and emergency preparedness•Parish personnel responding to request for assistance shall have the same power and authority as the equivalent personnel in the responding parish
Interstate Emergency Preparedness and Disaster CompactEmergency Management Assistance Compact
LRS 29:733
•Commonly known as “EMAC”•Provides for mutual aid among the states
Immunities for Premises
•LRS 733.1 Limitation of liability for owner or operator of facilities
•Voluntary, no compensation, for purposes of homeland security or emergency preparedness
Immunities for Government PersonnelLRS 29:735
•Applies to state, political subdivisions, other agencies•Employees and representatives
Immunities for Health Care ProvidersLRS 29:735.1
•During state of emergency•Health care provider•Voluntarily providing assistance•Anywhere in the state •No civil liability
Immunities for Health Care ProvidersLRS 29:735.1
•During state of emergency•Health care provider•Voluntarily providing assistance•Anywhere in the state •No civil liability except for gross negligence or willfull misconduct
Immunities for Health Care ProvidersLRS 29:735.2
•Same as LRS 29:735.2 but adds “without charge’•Allows for out of state license holders to provide health care services during a declared state of emergency
Immunities for Evacuation or TreatmentLRS 29:735.3
•Provides for immunity for medical personnel who provide or fails to provide care or services as a result of an evacuation or failed evacuation•Exception: willful and wanton misconduct
Gratuitous Care or Services Rendered During EmergenciesLRS 29:735.3.1(Proposed); HB 554
•Passed committee unanimously•Provides for immunity for volunteers•Fills in a wide gap
The Louisiana Health Emergencies Powers ActLRS 29:760-772
Must be read and applied in conjunction with
Public Health and Safety Title 40 Sections 3, 5, 7, 10, 15, 16 and 18
Title 40
•Grants to the State Health Officer exclusive jurisdiction and authority over the state public health•Without a governor’s declaration of emergency can order isolation and quarantine in response to actual or suspected communicable disease•Can order the quarantine of a city or parish and manage the quarantine as he deems appropriate
Louisiana Health Emergency Powers ActLRS 29:760-772
•Governor consults with public health authorities, finds a public health emergency exists•Governor declares public health emergency•Governor granted emergency powers as in the LHSEADA•Director, GOHSEP, in consultation with DHH responsible for the coordination of the response to include
•Ordering the close, evacuation or decontamination of facilities•Ordering the destruction or decontamination of any materials•Procure, appropriate, construct, lease or transport, store, maintain, renovate and distribute materials or facilities deemed necessary for response
FEMA Disaster Recovery Policy 9523.17
Emergency Assistance for Human Influenza Pandemic
•States Emergency Protective Measures expenses which may be recoverable•Overtime for regular employees may be recoverable•Regular pay and overtime for extra-hires may be recoverable•States what will not be recoverable
44 CFR and Applicable State Law
FEMA Contracts and Grant Basics
•Eligible Party
•Eligible Work•Maintenance records
•Eligible Cost (Reasonableness)•Procurement•Policies
Compliance with FEMA State Agreement
•Compliance Officer for Hurricanes Gustav and Ike: Ben Plaia, Executive Counsel, GOHSEP
•Responsibilities:• Permit any award to debarred or suspended party: See www.epls.gov•State and federal procurement standards followed: 44 CFR 13.36•GOHSEP Compliance Team
Procurement Standards44 CFR 13.36
•State Law: Required to follow all state and local law procedures that apply to your jurisdiction
•Federal regulations(44CFR 13.36): Required to follow when more stringent than state law, i.e. all contracts, to include professional services must be competitively bid
•“Piggybacking”: STRONGLY NOT recommended by FEMA to AVOID; problems with competitive bidding
Procurement Standards44 CFR 13.36 (con’t)
•Maintain a contract admin system that assures contract performance (monitoring)
•Written code of standards for employees to avoid any conlict of interest
•Review procedures to avoid unnecessary or duplicative purchases
•Awards only to responsible contractors
•RECORDS RECORDS RECORDS
•Time and Material contracts under very limited circumstances
Procurement Standards44 CFR 13.36 (con’t)
•Grantee and sub-grantee responsible for administrative practices and good business judgment
•Protest procedures to handle disputes (usually in contract)
Required Contract Provisions44 CFR 13.36(i)
•Administrative, contractual or legal remedies when contractor breaches contract•Termination for cause and for convenience to include manner effected and basis for settlement•Compliance with Equal Employment Opportunity Executive Order: for all construction contracts >$10,000•Compliance with Copeland Anti-Kickback Act: for all construction contracts•Compliance with Davis-Bacon Act: for construction contracts in excess of $2,000•Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act: for construction contracts >$2,000•Awarding agency reporting requirements•Requirements of reporting agency on patents, discoveries, inventions, copyrights and rights to date
Required Contract Provisions44 CFR 13.36(i) con’t
• Access to all records by grantee, sub-grantee and Federal grantor
• Retention of all records for three years after closeout • Compliance with all applicable standards, orders and
requirements of the Clean Air Act, Clean Water Act and EPA regulations: for all contracts
• Mandatory standards for energy efficiency contained in the state energy conservation plan
• Monitoring clause (13.40)
The term contract used herein refers to both contracts and subcontracts
Sub-grants44 CFR 13.37
•State has certain requirements
•Other grantees have stated requirements
Monitoring44 CFR 13.40
•Requires grantee to be responsible to monitor sub-grant
•Monitoring clause•State appoints Contract Officer and Project Manager•Sub-grantee appoints Contract Officer
•GOHSEP Compliance Team
Litigating with FEMAin the aftermath of
St. Tammany vs FEMA556 F. 3d 307
Homeland Security Act of 2002 6 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)).”
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. . . .”
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.
Tucker Act 28 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.
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.
Federal Tort Claims Act 28 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.
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.
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.”
Adminstrative Procedures Act 5 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.”
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;
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.
Freedom of Information Act 5 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 . . . .”
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.”
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.
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.”
St. Tammany Parish v. FEMA556 F. 3rd 307
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. Section 5151” - nondiscrimination, fair and impartial relief distribution
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.”
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.”
St. Tammany Parish v. FEMA
St. Tammany: Sovereign Immunity Waived
Stafford Act
FTCA
APA
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.
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.
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.
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.
St. Tammany Parish v. FEMA
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
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.”
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.
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.
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].”
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.