Barbosa v. United States Department of Homeland Security
278 F. Supp. 3d 325
| D.D.C. | 2017Background
- Plaintiffs (Barbosa et al.) sued FEMA and DHS alleging multiple statutory and APA violations arising from FEMA’s administration of the Individuals and Households Program after disasters.
- Counts I–III alleged FEMA failed to promulgate required regulations; Count IV alleged FEMA used unpublished rules/policies to decide claims, violating 5 U.S.C. § 552(a)(1).
- District court previously dismissed Counts I–III for lack of subject-matter jurisdiction under the Stafford Act’s discretionary function exception (42 U.S.C. § 5148).
- Plaintiffs moved for reconsideration only as to Count IV, arguing it is fact-based and distinct from Counts I–III and thus reviewable.
- The court denied reconsideration, holding Count IV is also barred by the Stafford Act’s discretionary function exception because resolving it would require reviewing FEMA’s discretionary decision whether to publish particular rules or policies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count IV (challenge to FEMA’s use of unpublished rules under 5 U.S.C. § 552(a)(1)) is subject to judicial review | Count IV is fact-based and distinct; APA publication requirement violations are reviewable and should be adjudicated | FEMA’s decision whether to publish rules/policies is discretionary and shielded from review by the Stafford Act exception | Dismissed for lack of jurisdiction: Stafford Act discretionary-function exception bars review of Count IV |
| Whether courts should follow LUPE’s contrary trial-court decision | LUPE supports reviewability of unpublished-policy claims | Federal-law precedent (D.C. Cir. and other circuits) bars such review under the discretionary-function exception | LUPE is not controlling; district court follows binding D.C. Circuit guidance and other circuits holding claims barred |
| Whether resolution of Count IV would require resolving discretionary policy judgments | Plaintiffs: the claim is a discrete APA publication claim not implicating policy discretion | Defendants: determining publication obligation would require classifying rules/policies (substantive, interpretive, policy, etc.), a discretionary policy judgment | Court: deciding Count IV would necessarily involve those discretionary determinations and is therefore barred |
| Whether FTCA/Stafford Act jurisprudence interpreting discretionary-function exception applies to APA procedural challenges | Plaintiffs: APA procedural claims stand apart | Defendants: FTCA/Stafford Act caselaw shows procedural APA claims can be barred as policy-making discretion | Court: Analogous FTCA/D.C. Circuit precedent (Jayvee Brand) and other circuits (Rosas, St. Tammany) support barring review |
Key Cases Cited
- Rosas v. Brock, 826 F.2d 1004 (11th Cir. 1987) (Stafford Act’s discretionary-function exception bars review of agency’s decision whether to treat a rule as substantive or interpretive)
- St. Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307 (5th Cir. 2009) (discretionary-function exception precluded APA notice-and-comment challenge to FEMA action)
- Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C. Cir. 1983) (FTCA discretionary-function exception bars tort claims that attack agency rulemaking procedures)
- La Union Del Pueblo Entero v. FEMA, 608 F.3d 217 (5th Cir. 2010) (appellate decision in LUPE context; district-court proceedings in LUPE reached a different conclusion on publication claims but did not bind this court)