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Governors Office of Homeland Security & Emergency Preparedness.

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Presentation on theme: "Governors Office of Homeland Security & Emergency Preparedness."— Presentation transcript:

1 Governors Office of Homeland Security & Emergency Preparedness

2 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

3 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

4 WHY are you here?

5 Katrina, August 29, 2006

6 Lakeview (17 th St. Canal), New Orleans

7 9 th Ward, New Orleans

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11 Emergency Management Law Seminar Agenda Its 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

12 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

13 Legal Issues Impacting Parish Directors or Its 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

14 Prepatory Phase Emergency Operations Plan Review for operability POD locations Review for legal sufficiency

15 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

16 Prepatory Phase Overtime Policies FEMA requirement

17 Prepatory Phase Cost Documentation Policy

18 Prepatory Phase Debris Removal Contracts

19 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

20 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

21 Response Phase Declaration of Curfew When to declare Effect Proper format Proper declarant Parish Municipality Area covered by declaration Duration Responsibility of Citizens

22 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

23 Response Phase Executive orders issued by the Parish President Possible suspension of existing parish ordinances

24 Response Phase Immunity for Volunteers First responders Government employees Private citizens Willful/Negligent

25 Recovery Phase Cost documentation Firemen Policemen Volunteers

26 Recovery Phase Legal considerations regarding the initial PA 25% FEMA matching fund The importance of initial assessments The importance of in-kind match

27 Recovery Phase Debris Removal Considerations Bid requirements Private property considerations Legal responsibility of parish officials

28 Mitigation Legal implications of grant accountability Funds received Equipment purchased

29 Mitigation What is the Parish Directors responsibility regarding items procured with grants?

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31 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

32 The FEMA – State Relationship Pre-Disaster Response Recovery DIFFICULT capricious arbitrary St. Tammany Parish v. FEMA 2009 WL 146582, C.A.5 (La.), January 22, 2009

33 LEGEND Status Feedback Request for Support State Operations State Operations State Agency Assets State Agency Assets ESF Contracts Rents etc. ESF Contracts Rents etc. Parish EOC Parish Assets Parish Assets Contracts Rents etc. Contracts Rents etc. Federal Assistance Federal Assistance EMAC State To State Assets EMAC State To State Assets The Emergency Management Process

34 All Emergencies are local! Parish EOC 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.

35 Receives, Validates, Authorizes & Tracks Support Maintain Linkage When Emergencies exceed local capabilities….. Provides Support & Tracks Request For Support Provide SITREP Request Methodology Primary: WebEOC Other: FAX, Phone, E-mail, 800 mhz, Satellite phone

36 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 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

37 State Unified Command Group Unified Commander (Governor) Deputy Unified Commander (GOHSEP Director) Lead Agency SecretariesESF Secretary of Transportation & Development ESF- 1 & 3 Superintendent of State Police ESF-2, 10, 13 The Adjutant General ESF- 2, 7, 16 Commissioner of Agriculture ESF- 4 & 11 Secretary of Social Services ESF- 6 Secretary of Public Safety ESF- 6 Commissioner of AdministrationESF- 7 Secretary of Health & Hospitals ESF-8 LSU Health SciencesESF-8 Secretary of Wildlife & Fisheries ESF-9 Secretary of Environmental Quality ESF-10 Secretary of Natural Resources ESF-12 Public Service Commission ESF-12 The Attorney General ESF-13 Governors Oil Spill CoordinatorESF-10 Unified Command Staff ESF-5, ESF-14 (SCO) ESF-15 (Joint Information Center) Legislative Liaison Lead Agency SecretariesESF

38 Parishes and municipalities should strive to have a unified command structure similar to the States

39 CategoryType of Work Emergency WorkADebris Removal BEmergency Protective Measures Permanent WorkCRoads and Bridges DWater Control Facilities EBuildings and Equipment FUtilities GParks, Recreations Facilities and Other

40 State Law, Regulations and Executive Orders

41 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) Governors 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)

42 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)

43 FEMA Publications and Independent Self Study FEMA 321 Public Assistance Digest FEMA 322 Public Assistance Guide FEMA 323 Public Assistance Applicants 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

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45 Lifecycle of an Emergency/Disaster and Corresponding Laws and Regulations

46 The Lifecycle Of An Emergency/Disaster Activation of State EOC Activation of Local EOCs Governor Declares State Of Emergency Emergency Operations Continue Activation Of Pre-qualified Contracts Local Damage Assessment Anticipated Event Activation of UCG Issuance Of Proclamations & Executive Orders Issuance of Local Proclamations & Executive Orders Gov. Requests Emergency Presidential Declaration Emergency Operations On-going PD Granted For Cat B & DFA PD Denied EventEvent Locals Use/Exhaust Resources Locals Request Resources From State EOC State Responds To Locals Resource Request State Responds To Locals Resource Request Joint Damage Assessment Teams (FEMA/State/Local) Gov. Requests PD For Major Disaster Gov. Requests PD For Major Disaster Disaster Assistance Delivered (PA/IA/HMGP) PD Granted PD Denied Or Not Required PD Denied Or Not Required Appeal IEB Training Assessments MOUs Contracts CEAs Appeal IEB State/Federal Local Response Phase Preparation Phase Recovery Phase

47 The Lifecycle Of An Emergency/Disaster Applicant Briefing With State FEMA/State Agreement Interim Compliance Reviews by GOHSEP Project Completion /Closeout State/Federal Local Response Phase Preparation Phase Recovery Phase Applicant Request For Public Assistance Applicant Request For Public Assistance FEMA Kickoff Meeting Preparation of Project Worksheets FEMA Obligates Funds PW Approved by FEMA FEMA Denies PW Applicant Appeals PW Assigned to Disaster Recovery Specialist END

48 Activity PREPARATION Corresponding Law, Regulation, Policy or Executive Order and Comments Training AssessmentsFind 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

49 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 DeniedAppeal to FEMA: 44 CFR 206.46(a); Interim Emergency Board LRS 39:461; IEB Policies and Procedures

50 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 resourcesLocal 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 Granted44 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)

51 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 Agreement44 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 BriefingFEMA 322, pgs 91-92: State briefs applicant on PA program and applicants responsibilities

52 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 applicants briefing; 30 days from declaration or designation Kickoff MeetingFEMA 322 pg 94, FEMA 9570.2; conducted by FEMA to address the applicants 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 FEMA44 CFR 206.201(j), FEMA 321 pg 104; FEMA ensures project is in compliance with law and regulations PW deniedIEB and/or appeal to FEMA 44 CFR 206.46(b) FEMA obligates funds44 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

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54 The Louisiana Homeland Security and Emergency Assistance and Disaster Act (The Act) LRS 29:721-738

55 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

56 Powers of the Governor LRS 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

57 State Unified Command Group LRS 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

58 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

59 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

60 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 Governors powers)

61 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

62 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

63 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 Governors and Parish President Shall notify Parish president All additional assistance shall be requested thru the parish and not GOHSEP (GOHSEP Policy)

64 Evacuations and Curfews LRS 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???

65 Inter-jurisdictional Assistance LRS 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

66 Interstate Emergency Preparedness and Disaster Compact Emergency Management Assistance Compact LRS 29:733 Commonly known as EMAC Provides for mutual aid among the states

67 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

68 Immunities for Government Personnel LRS 29:735 Applies to state, political subdivisions, other agencies Employees and representatives

69 Immunities for Health Care Providers LRS 29:735.1 During state of emergency Health care provider Voluntarily providing assistance Anywhere in the state No civil liability

70 Immunities for Health Care Providers LRS 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

71 Immunities for Health Care Providers LRS 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

72 Immunities for Evacuation or Treatment LRS 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

73 Gratuitous Care or Services Rendered During Emergencies LRS 29:735.3.1(Proposed); HB 554 Passed committee unanimously Provides for immunity for volunteers Fills in a wide gap

74 The Louisiana Health Emergencies Powers Act LRS 29:760-772

75 Must be read and applied in conjunction with Public Health and Safety Title 40 Sections 3, 5, 7, 10, 15, 16 and 18

76 Title 40 Grants to the State Health Officer exclusive jurisdiction and authority over the state public health Without a governors 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

77 Louisiana Health Emergency Powers Act LRS 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

78 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

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80 44 CFR and Applicable State Law

81 FEMA Contracts and Grant Basics Eligible Party Eligible Work Maintenance records Eligible Cost (Reasonableness) Procurement Policies

82 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

83 Procurement Standards 44 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

84 Procurement Standards 44 CFR 13.36 (cont) 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

85 Procurement Standards 44 CFR 13.36 (cont) Grantee and sub-grantee responsible for administrative practices and good business judgment Protest procedures to handle disputes (usually in contract)

86 Required Contract Provisions 44 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

87 Required Contract Provisions 44 CFR 13.36(i) cont 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

88 Sub-grants 44 CFR 13.37 State has certain requirements Other grantees have stated requirements

89 Monitoring 44 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

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91 Litigating with FEMA in the aftermath of St. Tammany vs FEMA 556 F. 3d 307

92 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)).

93 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....

94 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.

95 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.

96 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 officers decision is final unless a timely appeal is taken to the agencys 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.

97 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.

98 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.

99 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.

100 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.

101 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;

102 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.

103 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....

104 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.

105 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.

106 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.

107 St. Tammany Parish v. FEMA 556 F. 3 rd 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

108 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.

109 St. Tammany Parish v. FEMA FEMAs 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.

110 St. Tammany Parish v. FEMA St. Tammany: Sovereign Immunity Waived Stafford Act FTCA APA

111 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 FEMAs Stafford Act duties. Discretionary Function under § 5148 means the same as the cases give the term under the FTCA.

112 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.

113 St. Tammany Parish v. FEMA Fifth Circuit (continued): Stafford Act § 407 (42 U.S.C. § 5173) says the Presidentis 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.

114 St. Tammany Parish v. FEMA Fifth Circuit (continued): A memorandum by FEMAs 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.

115 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.

116 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.

117 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.

118 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.

119 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].

120 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.

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122 QUESTIONS And CLOSING COMMENTS Ben Plaia Executive Counsel 225-925-7445 bplaia@ohsep.louisiana.gov


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