Barbosa v. United States Department of Homeland Security
263 F. Supp. 3d 207
| D.D.C. | 2017Background
- In 2015–2016 storms in Texas, 26 homeowners had FEMA Individuals and Households Program (IHP) applications denied in whole or part; they sued alleging FEMA failed to promulgate required regulations and relied on unpublished “secret” rules.
- Congress directed FEMA via the Stafford Act to "prescribe rules and regulations to carry out" the IHP (eligibility criteria, standards, procedures), to issue regulations ensuring nondiscrimination, and to issue rules providing for fair appeals.
- FEMA had published IHP provisions at 44 C.F.R. §§ 206.110–206.120 (eligibility factors, housing assistance, appeals) and nondiscrimination rules at 44 C.F.R. § 206.11 and 44 C.F.R. pt. 7.
- Plaintiffs sought declaratory and injunctive relief under the Administrative Procedure Act (APA), arguing FEMA’s CFR provisions were too vague and that the agency used unpublished rules in adjudications (Counts I–IV).
- Defendants moved to dismiss for lack of jurisdiction invoking the Stafford Act’s discretionary function exception and alternatively argued FEMA’s regulations reasonably implement the statute; plaintiffs moved for partial summary judgment on Counts I–III.
- The court held the Stafford Act’s discretionary function exception bars judicial review of FEMA’s rulemaking discretion and, alternatively, that FEMA’s regulations are reasonable interpretations of the Stafford Act; it granted defendants’ motion to dismiss and denied plaintiffs’ motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEMA’s failure to publish detailed eligibility criteria in the CFR violates 42 U.S.C. § 5174(j) | FEMA must publish all eligibility criteria and standards in formal CFR regulations; its CFR rules are insufficient | Stafford Act permits FEMA to "prescribe rules and regulations" (including non-CFR rules); agency has discretion on specificity | Dismissed: FEMA has discretion; regulations are a reasonable implementation of § 5174(j) and are judicially unreviewable under the discretionary-function exception |
| Whether FEMA must issue nondiscrimination regulations with greater specificity under 42 U.S.C. § 5151(a) | § 5151(a)’s mandate to “insure” nondiscrimination is mandatory and requires more detailed CFR regulations | Statute allows "as may be necessary" regulations; FEMA’s § 206.11 and cross-referenced part 7 provide substantive nondiscrimination measures | Dismissed: FEMA’s interpretation is reasonable; agency discretion applies and is protected by the discretionary-function exception |
| Whether FEMA’s appeals rules must be more detailed under 42 U.S.C. § 5189a(c) | § 5189a(c) requires detailed published rules for appeals; existing § 206.115 is inadequate | FEMA published appeals procedures; level of specificity is within agency discretion | Dismissed: § 206.115 is a permissible level of detail; discretionary-function exception bars review |
| Whether FEMA’s reliance on unpublished "secret rules" violates the APA and FOIA provision (5 U.S.C. § 552(a)(1)) | Use of unpublished rules to deny benefits deprived applicants of notice and violates disclosure requirements | FEMA may employ rules and implementation methods beyond formal CFR text; the challenge to such choices is barred as discretionary | Dismissed: Count IV depends on Counts I–III and fails because agency rulemaking and level of publication are discretionary and the published regulations are reasonable |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (1991) (establishes two-step test for discretionary-function immunity and expressly protects agency rulemaking and program-level planning)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (two-step framework for reviewing agency statutory interpretations)
- Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir. 2002) (agency specificity limits where statute requires concrete regulatory content)
- La Union Del Pueblo Entero v. FEMA, 608 F.3d 217 (5th Cir. 2010) (upholding FEMA’s IHP regulations as sufficiently narrowing eligibility under § 5174(j))
- Cement Kiln Recycling Coalition v. EPA, 493 F.3d 207 (D.C. Cir. 2007) (deference to agency in choosing level of generality for implementing rules)