Barbosa v. U.S. Dep't of Homeland SEC.
916 F.3d 1068
D.C. Cir.2019Background
- Appellants: 26 Texas residents whose homes were damaged in 2015–16 major disasters and La Unión del Pueblo Entero; they applied to FEMA’s Individuals and Households Program for assistance and appealed adverse determinations.
- FEMA promulgated regulations implementing the Stafford Act’s nondiscrimination, eligibility, and appeal requirements, detailing eligible/ineligible items, amounts, application/appeal procedures, and stating appellate decisions are final.
- Appellants claimed FEMA’s regulations (and alleged agency ‘‘secret law’’ used by contractors) failed to specify criteria for eligibility and award amounts, impairing meaningful appeals and procedural fairness.
- District court dismissed the suit for lack of jurisdiction, alternatively finding FEMA’s regulations adequate; the government invoked 42 U.S.C. § 5148 (preclusion of judicial review of discretionary acts).
- The D.C. Circuit affirmed, holding the discretionary-function preclusion bars judicial review of Appellants’ Stafford Act regulatory and decision claims; suggested FOIA (5 U.S.C. § 552(a)(3)/(4)(B)) as the proper avenue to obtain internal policies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEMA’s regulations fail to specify criteria for eligibility and award amounts | Regulations lack sufficient criteria; ‘‘secret law’’ governs claims and appeals, preventing effective application and appeal | Regulations and guidance satisfy statutory mandates; even if inadequate, § 5148 precludes judicial review | Court held regulations are within FEMA’s discretionary range and § 5148 precludes review |
| Whether FEMA’s appeals procedures are ‘‘fair’’ under statute | Appellants: appeals opaque because reasons and standards for denials are unstated, undermining effective appeals | FEMA: appeals process and access to files satisfy requirements; no judicial review available | Court declined to decide fairness substantively because § 5148 bars review |
| Whether FOIA § 552(a)(1)(D) can be used to force publication or reopen Stafford Act decisions | Appellants: FOIA publication requirement entitles them to disclosure of ‘‘substantive rules’’ and to reopening of denials | Government: § 552(a)(1) does not provide a private right to a Federal Register publication remedy; § 5148 still bars Stafford Act claims; FOIA § 552(a)(3) is the proper disclosure route | Court held § 552(a)(1) cannot be used to circumvent § 5148; directed Appellants to standard FOIA requests and § 552(a)(4)(B) review if denied |
| Whether the discretionary-function exception is inapplicable because statute ‘‘specifically prescribes’’ action | Appellants analogize to cases invalidating agency rules that nullify clear statutory prescriptions | Government contends Stafford Act grants FEMA broad rulemaking discretion and the regulations meaningfully narrow eligibility | Court found statute did not specifically prescribe the exact course FEMA must follow; FEMA’s rules involve judgment the exception protects, so preclusion applies |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (discretionary-function test articulated for FTCA)
- Berkovitz v. United States, 486 U.S. 531 (statutory prescription exception to discretionary-function test)
- American Airlines, Inc. v. Transportation Sec. Admin., 665 F.3d 170 (agency rule invalidated for containing a broad escape clause undermining statutory mandate)
- Oceana, Inc. v. Locke, 670 F.3d 1238 (agency rule defeated a statutory command by adding a vague exception)
- La Union del Pueblo Entero v. FEMA, 608 F.3d 217 (Fifth Circuit upheld FEMA regulations as sufficiently narrowing eligibility)
- Lightfoot v. District of Columbia, 448 F.3d 392 (statement of reasons may be required when protected property interests are implicated)
- Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d 1191 (limits on judicially enforcing FOIA publication mandate)
- Satellite Broadcasting Co. v. FCC, 824 F.2d 1 (example where failure to publish agency rule harmed applicant)
- Ethyl Corp. v. EPA, 306 F.3d 1144 (agency’s failure to promulgate statutorily required regulations may be unlawful)