Presentation on theme: "2009 Education Outreach Program"— Presentation transcript:
12009 Education Outreach Program Governor’s Office of Homeland Security & Emergency Preparedness2009EducationOutreachProgram
2INTRODUCTION Greetings and our thanks for attending Mark Cooper, DirectorMark Riley, Deputy DirectorPat Santos, Assistant Deputy Director OperationsClay Rivas, Assistant Deputy Director Homeland SecurityBrandt Mitchell, Assistant Deputy Director Interoperability and Support ServicesMark DeBosier, Assistant Deputy Director Disaster Recovery
3InstructorsJohn Gonzales, State Public Assistance OfficerCasey Levy, State Hazard Mitigation OfficerFred Garner, State Debris ManagerChris Guilbeaux, Operations Section ChiefJim Ballow, Assistant Operations Section ChiefRick Moore, GOHSEP Intelligence OfficerTara Walker, State Applicant LiaisonSean Wyatt, Grants AdministratorKatie Wesley, Grants AdministratorGlen Kent, Attorney and OEP Director, East Feliciana ParishMichael Gaffney, AttorneyPepper Allgood, AttorneySarah Brehm, AttorneyDan Davis, AttorneyLynn Wiltz, AttorneyBen Plaia, Executive Counsel, GOHSEP
11Emergency Management Law Seminar Agenda It’s Emergency Management LiveIntroduction to the Emergency Management Process, Law and PolicyLifecycle of an Emergency/Disaster and Corresponding Law, Regulations and PolicyOverview of:Louisiana Homeland Security and Emergency Assistance and Disaster ActLouisiana Health Emergencies ActOverview of 44 CFRLitigating with FEMA in the aftermath of St. Tammany vs. FEMA
12Rules of the RoadGOHSEP attorneys do not represent parishes, municipalities or PNPsGOHSEP attorneys do not give legal opinions to any representative from a parish, municipality or PNPGOHSEP attorneys have the obligation to provide support to an attorney representing any parish, municipality or qualified PNPYour boss needs an attorney knowledgeable in emergency management law
13Legal Issues Impacting Parish Directors or “It’s Emergency Management Live”Featuring:Glen Kent as the exasperated, over-worked parish emergency operations directorMike Gaffney, the brash, cocky parish attorney who Glen hopes knows it allAndA cast of lively characters to add realism and a bit of humor
14Prepatory Phase Emergency Operations Plan POD locations Review for operabilityPOD locationsReview for legal sufficiency
15Prepatory Phase1) 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 LawsFederal Laws for ReimbursementPre-prepared contractsDual Contracts
19Prepatory Phase Declaration of Emergency When to declare Proper format Emergency powers conferredEOC activatedResponse phase initiatedProper formatProper declarantParishMunicipalityArea covered by declarationDuration
20Prepatory Phase Emergency powers compared Director of Emergency PreparednessParish PresidentPower to utilize parish employees and propertyPower to utilize municipal employees and propertySheriffMayorsPolice chiefs
21Response Phase Declaration of Curfew When to declare Proper format EffectProper formatProper declarantParishMunicipalityArea covered by declarationDurationResponsibility of Citizens
22Response Phase Order to Evacuate When to declare Proper format EffectProper formatVoluntaryMandatoryEnforcedProper declarantParishMunicipalityArea covered by declarationDurationResponsibility of Citizens
23Response Phase Executive orders issued by the Parish President Possible suspension of existing parish ordinances
24Response Phase Immunity for Volunteers Willful/Negligent First respondersGovernment employeesPrivate citizensWillful/Negligent
31Introduction to The Emergency Management Process, Law, Policy and Regulation The FEMA – State RelationshipThe Emergency Management ProcessThe UCG/ESF/EOC function and relationship to local jurisdictionState Law, Regulation and Executive OrdersFederal Law and RegulationsFederal PolicyFEMA PolicyFEMA Publications
32The FEMA – State Relationship Pre-DisasterResponseRecoveryDIFFICULTcapriciousarbitrarySt. Tammany Parish v. FEMA 2009 WL , C.A.5 (La.), January 22, 2009
33The Emergency Management Process StateAgencyAssetsESFContractsRentsetc.LEGENDStatus FeedbackRequest for SupportStateOperationsParish EOCParishAssetsContractsRentsetc.FederalAssistanceEMAC StateTo State Assets
34All Emergencies are local! Local governments must plan to handle emergencies on the local level by using local assets, renting equipment, and through the use of contracts.Parish EOCParishAssetsContractsRentsetc.
35When Emergencies exceed local capabilities….. Request MethodologyPrimary: WebEOCOther: FAX, Phone, ,800 mhz, Satellite phoneProvides Support & TracksSkip’s NotesParishes may request assistance and resources for the state.This slide depicts the relationship between the Parish Government and the State Government in the recourse request process.Receives, Validates, Authorizes & Tracks SupportMaintain LinkageRequest For Support Provide SITREP
36Emergency Support Functions ESF #1 - TransportationESF #2 - CommunicationsESF #3 - Public Works and EngineeringESF #4 - FirefightingESF #5 - Emergency ManagementESF #6 - Mass Care, Housing, and Human ServicesESF #7 - Resource SupportESF #8 - Public Health and Medical ServicesESF #9 - Urban Search and RescueESF #10 - Oil and Hazardous Materials ResponseESF #11 - Agriculture and Natural ResourcesESF #12 - EnergyESF #13 - Public Safety and SecurityESF #14 - Long-Term Community Recovery and MitigationESF #15 - External AffairsEmergency Support FunctionsESF #1 - TransportationESF #2 - CommunicationsESF #3 - Public Works and EngineeringESF #4 - FirefightingESF #5 - Emergency ManagementESF #6 - Mass Care, Housing, and Human ServicesESF #7 - Resource SupportESF #8 - Public Health and Medical ServicesESF #9 - Urban Search and RescueESF #10 - Oil and Hazardous Materials ResponseESF #11 - Agriculture and Natural ResourcesESF #12 - EnergyESF #13 - Public Safety and SecurityESF #14 - Long-Term Community Recovery and MitigationESF #15 - External AffairsESF #16 - LANGSkip’s NotesThis slide shows the designation of each of the 16 Emergency Support Functions or ESFs
37State Unified Command Group Unified Commander (Governor)Deputy Unified Commander (GOHSEP Director)Unified Command StaffESF-5, ESF-14 (SCO)ESF-15 (Joint Information Center)Legislative LiaisonLead Agency Secretaries ESFLead Agency Secretaries ESFSecretary of Transportation & Development ESF- 1 & 3Superintendent of State Police ESF-2, 10, 13The Adjutant General ESF- 2, 7, 16Commissioner 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
38Parishes and municipalities should strive to have a unified command structure similar to the State’s
39CategoryType of WorkEmergency WorkADebris RemovalBEmergency Protective MeasuresPermanent WorkCRoads and BridgesDWater Control FacilitiesEBuildings and EquipmentFUtilitiesGParks, Recreations Facilities and Other
41State LawThe Louisiana Homeland Security and Emergency Assistance and Disaster Act (LRS 29: )The Louisiana Health Emergency Powers Act (LRS 29: )Governor’s Executive OrdersEO BJ Emergency Operations PlanEO BJ Establishment of Unified Command Group and SubcommitteesEO BJ NIMSOther necessary EOsState Emergency Operations Plan and Annex (Corresponding Local EOP)Emergency RegulationState Bid LawState Ethics CodeInterim Emergency Board (LA Constitution, Amendment 7,Section 7; LRS 39:461)
42Federal Law and Policy The Stafford Act (42 USC 5121 et seq.) 44CFR Emergency Management and AssistanceSection 7.7 and 7.10 ComplianceSection ProcurementSection 206 Public AssistanceFEMA 9500 SeriesDisaster Specific Guidance (DSG)National Incident Management System (NIMS)National Response Framework (NRF)
43FEMA Publications and Independent Self Study FEMA 321 Public Assistance DigestFEMA 322 Public Assistance GuideFEMA 323 Public Assistance Applicant’s Handbook (Draft)FEMA 325 Debris Management GuideIS 700 NIMS IntroductionIS 800 National Response Framework IntroductionIS 100, 200 Incident Command SystemElectivesIS 208 State Disaster ManagementIS 230 Principles of Emergency ManagementIS 235 Emergency PlanningIS 630 Introduction to the PA Process
45Lifecycle of an Emergency/Disaster and Corresponding Laws and Regulations
46The Lifecycle Of An Emergency/Disaster TrainingAssessmentsMOU’sContractsCEA’sAnticipated EventActivation of UCGGovernor Declares State Of EmergencyActivation of State EOCActivation of Local EOCsIssuance Of Proclamations & Executive OrdersEventPD Granted For Cat B & DFAEmergency Operations On-goingIssuance of Local Proclamations & Executive OrdersGov. Requests Emergency Presidential DeclarationPD DeniedAppeal IEBEmergency Operations ContinueLocal Damage AssessmentActivation Of Pre-qualified ContractsLocals Use/Exhaust ResourcesLocals Request Resources From State EOCPD GrantedDisaster Assistance Delivered (PA/IA/HMGP)State RespondsTo Local’s Resource RequestJoint Damage Assessment Teams (FEMA/State/Local)Gov. RequestsPD For Major DisasterPD DeniedOr Not RequiredAppeal IEBState/FederalLocalResponse PhasePreparation PhaseRecovery Phase
47The Lifecycle Of An Emergency/Disaster FEMA/State AgreementApplicant Briefing With StateApplicant RequestFor PublicAssistanceFEMA Kickoff MeetingPW Approved by FEMAFEMA Obligates FundsPW Assigned to Disaster Recovery SpecialistPreparation of Project WorksheetsFEMA Denies PWApplicant AppealsInterim Compliance Reviews by GOHSEPProject Completion /CloseoutENDState/FederalLocalResponse PhasePreparation PhaseRecovery Phase
48ActivityPREPARATIONCorresponding Law, Regulation, Policy or Executive Order and CommentsTrainingAssessmentsFind your gapsMemorandum of Agreement (MOA)Also called Memorandum of Understanding (MOU); is not a contractContractsPre-bid or pre-qualifiedProcurement: LRS 39:1551 et seq; 44CFR Monitoring: 44CFR Contract contents: LRS 39:1498.1; 44CFR “YOU ARE A RISK MANAGER”Cooperative Endeavor AgreementsAlso called an Interagency Agreement; Constitutional authority (Article 7, Section 14); LRS 33: ; EO BJ to spend or transfer public funds; LLA CEA Memo and Form
49ActivityRESPONSECorresponding Law, Regulation, Policy or Executive Order and CommentsGovernor declares state of emergencyLHSEADA LRS 29:724(B)(1)Activation of State EOCActivation of UCGLHSEADA LRS 29:724(C)(1);State EOPIssuance of Proclamations and Executive OrdersLHSEADA LRS 29:724(D)(1)Activation of Local EOCsLHSEADA LRS 29:727(E); Local EOPIssuance of local proclamations and EOsLHSEADA LRS 29:727(F)(1)Gov requests Emergency PD44 CFR ; FEMA DAP 1001; must meet all the requirements stated in the regulation and the DAPPD Granted for Category B and DFAFEMA DAP 1001PD DeniedAppeal to FEMA: 44 CFR (a); Interim Emergency Board LRS 39:461; IEB Policies and Procedures
50ActivityRECOVERY (1)Corresponding Law, Regulation, Policy or Executive Order and CommentsPreliminary Damage Assessment44 CFR ; important that the local jurisdiction identifies all damages prior to arrival of State/FEMA teamLocals use resourcesLocal EOPLocals request resources and state respondsState EOPJoint Damage Assessment44 CFR ; damages must be verified by FEMAGov requests PD for major disaster44 CFR ; 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 Granted44 CFR ; based on subjective and objective damage assessment, FEMA designates the affected areas and the eligible assistancePD denied or not qualifiedIEB and/or appeal to FEMA 44 CFR (a)
51ActivityRECOVERY (2)Corresponding Law, Regulation, Policy or Executive Order and CommentsDisaster Assistance DeliveredIndividual Assistance (IA): 44 CFR ; Louisiana an Option 1 State: FEMA administers IA with small exceptionPublic Assistance (PA): 44 CFR ; 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 mitigationHazard Mitigation Grant Program (HMGP); 404 HM CFR Applies to non-damaged facilities; funding from a percentage of all disaster funding;FEMA-State Agreement44 CFR : understandings, commitments and obligations of FEMA and the State pursuant to major disaster declaration; Cost share 75/25; 90/10; 100Applicant BriefingFEMA 322, pgs 91-92: State briefs applicant on PA program and applicant’s responsibilities
52ActivityRECOVERY (3)Corresponding Law, Regulation, Policy or Executive Order and CommentsApplicant request for Public Assistance44 CFR (c), FEMA 322, pgs 92-93; usually submitted at applicant’s briefing; 30 days from declaration or designationKickoff MeetingFEMA 322 pg 94, FEMA ; conducted by FEMA to address the applicant’s needsPreparation of Project Worksheets44 CFR (d), FEMA 322 pg ; used to develop projects, damages, SOW, costs, special considerationsPW approved by FEMA44 CFR (j), FEMA 321 pg 104; FEMA ensures project is in compliance with law and regulationsPW deniedIEB and/or appeal to FEMA 44 CFR (b)FEMA obligates funds44 CFR (e)(2)PW assigned to GOHSEP DRSGOHSEP Policy: PW is reviewed, applicant reimbursed, project closed out, coordination with FEMA in between
54The Louisiana Homeland Security and Emergency Assistance and Disaster Act(The Act)LRS 29:
55Categories of Discussion Powers of the GovernorUnified Command GroupAuthority and Responsibility GOHSEP DirectorAuthority and Responsibility of GOHSEPAuthority and Responsibilities of Parish PresidentAuthority and Responsibility of Parish DirectorAuthority and Responsibility of Parish OfficeAuthority and Responsibilities of MunicipalitiesEvacuation and CurfewsInter-jurisdictional AssistanceInterstate Assistance (EMAC)Immunities
56Powers of the GovernorLRS 29:724Declare a state of emergencyAllows the exercise of extraordinary police powers to meet the challenges of the imminent or occurring disaster or emergency
57State Unified Command Group LRS 29:725.6Executive Order BJProvides for a unified approach to emergency managementStrategic decision making body for emergenciesEO states the members
58Authority and Responsibility of GOHSEP Director LRS 29:725Responsible for carrying out homeland security and emergency management programs for the StateCoordinate the activities of all agencies and organizationsCoordinate with other states and the federal governmentAuthorized to adopt rules and regulations under the Administrative Procedures Act
59Authority and Responsibility of GOHSEP LRS 29:726Responsible for homeland security and emergency preparedness in the statePrepare and maintain state Emergency operations planAssistance in development and revision of local and inter-jurisdictional emergency operations plansDetermine requirements for food, supplies, evacuation, shelteringPlan for response and recovery operationsProvide for rapid communications during disaster/emergency
60Authority and Responsibility of Parish Presidents LRS 29:727ONLY Parish President (Police Jury President) has authority under the “Act”Establishes and maintains the parish office of homeland security and emergency managementHas jurisdiction over and serves the entire parishAppoints the parish homeland security and emergency manager directorDeclares a state of emergency and corresponding proclamations and executive orders (mirrors Governor’s powers)
61Authority and Responsibility of Parish Director LRS 29:728Parish Director appointed by Parish PresidentResponsible 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
62Authority and Responsibility of Parish Office LRS 29:729Responsible for homeland security and emergency preparedness in the parishPrepare and maintain parish emergency operations planResponsibilities mirror GOHSEP as to requirements for food, supplies, evacuation and sheltering
63Authority and Responsibility of Municipalities LRS 29:730.2 and 737In event of emergency or disaster within the parish, municipalities shall provide available resourcesIn event of emergency within the municipality, chief executive officer has authority to respondAuthority and powers mirror Governor’s and Parish PresidentShall notify Parish presidentAll additional assistance shall be requested thru the parish and not GOHSEP (GOHSEP Policy)
64Evacuations and Curfews LRS 29:730.3Authority 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 parishVoluntary: no imminent danger but may exist in near futureMandatory: danger is imminent; lives in peril; no services or anticipation of rescue for those who stayForced: Not clear on what this means????? Forceable removal???
65Inter-jurisdictional Assistance LRS 29:730 and 730.1Allows two or more parishes to establish regional organizations for homeland security and emergency preparednessParish personnel responding to request for assistance shall have the same power and authority as the equivalent personnel in the responding parish
66Interstate Emergency Preparedness and Disaster Compact Emergency Management Assistance CompactLRS 29:733Commonly known as “EMAC”Provides for mutual aid among the states
67Immunities for Premises LRS Limitation of liability for owner or operator of facilitiesVoluntary, no compensation, for purposes of homeland security or emergency preparedness
68Immunities for Government Personnel LRS 29:735Applies to state, political subdivisions, other agenciesEmployees and representatives
69Immunities for Health Care Providers LRS 29:735.1During state of emergencyHealth care providerVoluntarily providing assistanceAnywhere in the stateNo civil liability
70Immunities for Health Care Providers LRS 29:735.1During state of emergencyHealth care providerVoluntarily providing assistanceAnywhere in the stateNo civil liability except for gross negligence or willfull misconduct
71Immunities for Health Care Providers LRS 29:735.2Same 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
72Immunities for Evacuation or Treatment LRS 29:735.3Provides for immunity for medical personnel who provide or fails to provide care or services as a result of an evacuation or failed evacuationException: willful and wanton misconduct
73Gratuitous Care or Services Rendered During Emergencies LRS 29: (Proposed); HB 554Passed committee unanimouslyProvides for immunity for volunteersFills in a wide gap
74The Louisiana Health Emergencies Powers Act LRS 29:
75Must be read and applied in conjunction with Public Health and Safety Title 40 Sections 3, 5, 7, 10, 15, 16 and 18
76Title 40Grants to the State Health Officer exclusive jurisdiction and authority over the state public healthWithout a governor’s declaration of emergency can order isolation and quarantine in response to actual or suspected communicable diseaseCan order the quarantine of a city or parish and manage the quarantine as he deems appropriate
77Louisiana Health Emergency Powers Act LRS 29:Governor consults with public health authorities, finds a public health emergency existsGovernor declares public health emergencyGovernor granted emergency powers as in the LHSEADADirector, GOHSEP, in consultation with DHH responsible for the coordination of the response to includeOrdering the close, evacuation or decontamination of facilitiesOrdering the destruction or decontamination of any materialsProcure, appropriate, construct, lease or transport, store, maintain, renovate and distribute materials or facilities deemed necessary for response
78FEMA Disaster Recovery Policy 9523.17 Emergency Assistance for Human Influenza PandemicStates Emergency Protective Measures expenses which may be recoverableOvertime for regular employees may be recoverableRegular pay and overtime for extra-hires may be recoverableStates what will not be recoverable
81FEMA Contracts and Grant Basics Eligible PartyEligible WorkMaintenance recordsEligible Cost (Reasonableness)ProcurementPolicies
82Compliance with FEMA State Agreement Compliance Officer for Hurricanes Gustav and Ike: Ben Plaia, Executive Counsel, GOHSEPResponsibilities:Permit any award to debarred or suspended party: SeeState and federal procurement standards followed: CFR 13.36GOHSEP Compliance Team
83Procurement Standards 44 CFR 13.36State Law: Required to follow all state and local law procedures that apply to your jurisdictionFederal 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
84Procurement Standards 44 CFR (con’t)Maintain a contract admin system that assures contract performance (monitoring)Written code of standards for employees to avoid any conlict of interestReview procedures to avoid unnecessary or duplicative purchasesAwards only to responsible contractorsRECORDS RECORDS RECORDSTime and Material contracts under very limited circumstances
85Procurement Standards 44 CFR (con’t)Grantee and sub-grantee responsible for administrative practices and good business judgmentProtest procedures to handle disputes (usually in contract)
86Required Contract Provisions 44 CFR 13.36(i)Administrative, contractual or legal remedies when contractor breaches contractTermination for cause and for convenience to include manner effected and basis for settlementCompliance with Equal Employment Opportunity Executive Order: for all construction contracts >$10,000Compliance with Copeland Anti-Kickback Act: for all construction contractsCompliance with Davis-Bacon Act: for construction contracts in excess of $2,000Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act: for construction contracts >$2,000Awarding agency reporting requirementsRequirements of reporting agency on patents, discoveries, inventions, copyrights and rights to date
87Required Contract Provisions 44 CFR 13.36(i) con’tAccess to all records by grantee, sub-grantee and Federal grantorRetention of all records for three years after closeoutCompliance with all applicable standards, orders and requirements of the Clean Air Act, Clean Water Act and EPA regulations: for all contractsMandatory standards for energy efficiency contained in the state energy conservation planMonitoring clause (13.40)The term contract used herein refers to both contracts and subcontracts
88Sub-grants44 CFR 13.37State has certain requirementsOther grantees have stated requirements
89Monitoring44 CFR 13.40Requires grantee to be responsible to monitor sub-grantMonitoring clauseState appoints Contract Officer and Project ManagerSub-grantee appoints Contract OfficerGOHSEP Compliance Team
91Litigating with FEMAin the aftermath ofSt. Tammany vs FEMA556 F. 3d 307
92Homeland Security Act of 2002 6 U.S.C. § 101 et. seq. Creates Department of Homeland SecurityPlaces 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)).”
93Stafford 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 ”
94Two 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.
95Tucker Act 28 U.S.C. § 1491Waiver 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.
96Contract 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.
97Federal Tort Claims Act 28 U. S. C. § 2671 et. seq. and 28 U. S. C Federal Tort Claims Act 28 U.S.C. § 2671 et. seq. and 28 U.S.C. § 1346(b)(1)28 U.S.C. § “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.
98Federal Tort Claims Act (continued) 28 USC § “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 § Contingent fee limitation: 25% on judgments or settlements after suit; 20% on administrative resolution.
99Federal 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.”
100Adminstrative 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.”
101Adminstrative 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;
102Adminstrative Procedures Act (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.
103Freedom 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 ”
104Freedom 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.”
105Freedom 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.
106Freedom 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.”
107St. Tammany Parish v. FEMA 556 F. 3rd 307 FEMA denied funding for post-Katrina debris removal (sediment) in St. Tammany canalsParish claims:Stafford Act debris removal funding provisions and FEMA policiesFTCA – negligent decision makingAPA – invalid rulemaking without notice/commentStafford Act right to appealStafford Act Sec. 308 “42 U.S.C. Section 5151” - nondiscrimination, fair and impartial relief distribution
108St. Tammany Parish v. FEMA (continued) FEMA: Sovereign Immunity Bar42 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.”
109St. 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.”
110St. Tammany Parish v. FEMA St. Tammany: Sovereign Immunity WaivedStafford ActFTCAAPA
111St. Tammany Parish v. FEMA Fifth Circuit:Stafford Act does not waive immunity but FTCA and APA do contain waivers.42 U.S.C. § 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.
112St. Tammany Parish v. FEMA Fifth Circuit (continued):Two part test of U.S. v. Gaubert, 499 U.S. 315, 111 S.Ct and Berkovitz v. U.S., 486 U.S. 531, 108 S.Ct. 1954Conduct of the federal employee involves judgment or choice, andThe 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.
113St. 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. § (a) - “the Regional Director may provide assistance for the removal of debris ”FEMA DAP (10/23/05) said FEMA had “authority” to fund private property debris removal and it “may” be in the public interest.
114St. 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.
115St. 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.”
116St. 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.”
117St. 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.
118St. 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.
119St. 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].”
120ArbitrationSec 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.