Time Extension - Appeal

Summary Paragraph

From June 23 to July 26, 2013, Tropical Storm Debby flooded roadways in Florida.  The Applicant, the Florida Department of Transportation (FDOT), sought $53,709.57 in Public Assistance funding for force account labor and equipment claimed as emergency protective measures performed in FDOT District 2.  Upon review of the Applicant’s support documentation for Project Worksheet (PW) 1091, FEMA identified issues impacting eligibility, including vague descriptions of the locations and work performed, as well as costs submitted for work performed in undeclared counties.  In January 2013, FEMA determined the Applicant’s entire claim was ineligible and processed PW 1091 for zero dollars.  FEMA notified the Florida Division of Emergency Management (Grantee) via email on March 23, 2013 of PW 1091’s ineligibility determination, which was later forwarded to the Applicant.  In a first appeal dated June 11, 2013, the Applicant argued FEMA should fund the claim because all of the costs were incurred to complete eligible emergency protective measures necessary to eliminate immediate threats to life and to protect public health and safety.  The Grantee transmitted the appeal on November 7, 2014.  On August 28, 2015, the FEMA Regional Administrator (RA) found the support documentation insufficient and requested specific, annotated documentation in order to verify that claimed expenditures met eligibility criteria.  In an acknowledgment email, the Applicant stated that it did not have additional documentation to provide.  In January 2016, the RA denied the appeal because the Grantee forwarded the first appeal more than 16 months after receiving it, in violation of 44 C.F.R. § 206.206(c)(2).  In addition, the RA found the Applicant did not provide adequate support documentation to substantiate it performed eligible emergency protective measures.  In a second appeal, the Applicant appeals a part of its previously denied claim of $1,751.19 for equipment, arguing that the RA requested documentation that it submitted with the first appeal; and that the documentation supports that multiple variable message boards were used to carryout emergency protective measures in specific locations with clear descriptions.  Due to the untimely first appeal, the Applicant exhausted its appeal rights relating to any part of FEMA’s determination that the work and costs claimed in PW 1091 were ineligible at the time it submitted its first appeal.  Moreover, although the Applicant reduces the amount of disputed costs sought on second appeal, it appeals the same ineligibility determination previously denied by FEMA in the first appeal decision, and fails to provide documentation specifically requested by the RA. Further, it does not clarify previously supplied information that was questioned by FEMA during PW formulation, the initial first appeal review, and the subsequent first appeal decision.  Finally, the Applicant does not dispute the RA’s determination that its first appeal, in its entirety, was late.  Thus, even if the Applicant’s appeal rights were preserved prior to second appeal, the second appeal fails to comply with 44 C.F.R. § 206.206(a).

Authorities and Second Appeals

• Stafford Act § 423.

• 44 C.F.R. § 206.206(a), (c)(2).

Headnotes

• Stafford Act § 423, as implemented by 44 C.F.R. § 206.206(c)(2), requires the grantee to review and forward an applicant’s appeal, to the RA within 60 days of receipt.

  • The Grantee forwarded the appeal more than 16 months after receiving it.

• Pursuant to 44 C.F.R. § 206.206(a), the burden to substantiate appeals with documented justification falls to the applicant, who must clearly articulate its position in addition to providing supporting documentation.

  • The Applicant has not demonstrated compliance with § 206.206(a).