governors office of homeland security & emergency preparedness

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 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


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


Governor declares state of emergency

LHSEADA LRS 29:724(B)(1)


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)


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)


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)


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


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


•During state of emergency•Health care provider•Voluntarily providing assistance•Anywhere in the state •No civil liability except for gross negligence or willfull misconduct


•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.”


§ 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.


§ 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: Sovereign Immunity Waived

Stafford Act

FTCA

APA


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.


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.


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.



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.



“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.”



“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.”



“[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.


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.


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.

QUESTIONS And

CLOSING COMMENTS

Ben PlaiaExecutive Counsel

[email protected]

governors office of homeland security & emergency preparedness

Documents

fema slide

gohsep slide

humor slide

emergency management

declaration duration

legal sufficiency slide

new orleans slide

parish employees