Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
)
DANIEL BARBOSA, et al., )
)
Plaintiffs, )
) v. ) Case No. 1:16-cv-01843 (APM) )
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs seek reconsideration of the court’s dismissal of Count IV of their Complaint,
which alleged that the Federal Emergency Management Agency (“FEMA”) violated the
Administrative Procedure Act, specifically 5 U.S.C. § 552(a)(1), by using unpublished rules to
evaluate Plaintiffs’ applications for disaster relief.
See
Pls.’ Mot. for Recons., ECF No. 18
[hereinafter Pl.’s Mot.]; Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 91–95. In its Memorandum
Opinion dismissing the Complaint, the court tersely explained its dismissal of Count IV as follows:
“Given that Count IV depends on Plaintiffs stating a claim in Counts I, II, or III, Count IV
necessarily fails to state a claim, as well.”
Barbosa v. U.S. Dep’t of Homeland Sec.
, No. 16-1843,
I
In Counts I, II, and III, Plaintiffs claimed that FEMA violated three separate statutory
mandates by failing to adopt sufficiently detailed regulations concerning the agency’s operation of
an emergency disaster relief program known as the Individuals and Households Program.
See Barbosa
, 2017 WL 2958606, at *2–3. The court’s primary reason for dismissing all three
counts was that Defendants were immune from suit under the “discretionary function exception”
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the “Stafford Act”),
42 U.S.C. §§ 5121–5206, the statute that governs the provision of emergency disaster relief,
including through the Individuals and Households Program.
Id.
at *5–10. The Stafford Act
provides that 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.” 42 U.S.C. § 5148. The court applied the two-part discretionary function test the Supreme
Court created in
United States v. Gaubert
and found that (1) FEMA’s determination of which rules
to adopt through formal notice-and-comment rulemaking is a discretionary act, and (2) such
decision-making is of the type that Congress intended to shield from review under the Stafford
Act’s discretionary function exception.
See Barbosa
,
Count IV advanced a different type of claim than that stated in Count I, II, or III. Whereas the first three counts alleged that FEMA had not promulgated regulations as required by Congress, *3 Count IV challenged FEMA’s use of unpublished rules and policies to decide Plaintiffs’ applications for disaster relief. Compare Compl. ¶¶ 81–90 (Counts I–III), with id. ¶ 93 (Count IV). That practice, Plaintiffs alleged, ran afoul of the Administrative Procedure Act’s (“APA”) requirement that “[f]ederal agencies must publish in the federal register all of their substantive and procedural rules and policy statements.” Id. ¶ 91 (citing 5 U.S.C. §§ 552(a)(1)(B)–(E)). As relief for that violation, Plaintiffs asked the court to enjoin FEMA from using any unpublished rules and to reevaluate Plaintiffs’ relief applications based only on the published rules that existed at the time. Id. ¶ 96.
II
The court concludes that it properly dismissed Count IV of the Complaint because the
Stafford Act’s discretionary function exception shields the agency actions that are the subject of
that count from judicial review. Count IV of the Complaint requires the court to determine whether
FEMA complied with the APA’s requirement that certain types of rules and policies must be
published in the Federal Register. Two circuit courts have held, however, that the Stafford Act’s
discretionary function exception bars judicial review of FEMA’s decision-making concerning the
applicability of the APA’s procedural requirements to FEMA’s rules and policies.
See Rosas v.
Brock
,
Both the Eleventh Circuit and the Fifth Circuit have held that the Stafford Act’s
discretionary function exception precludes judicial review of FEMA’s compliance with the APA’s
notice-and-comment rulemaking provisions. In
Rosas v. Brock
, the plaintiff, who was denied
disaster unemployment benefits, brought a class-action suit challenging the definition of
“unemployed worker” that the agency had used to evaluate his disaster relief claims.
See Rosas
,
Although the D.C. Circuit has not addressed the Stafford Act’s discretionary function
exception in the context of an APA challenge, it has addressed the scope of the exception in an
analogous context. In
Jayvee Brand, Inc. v. United States
, the plaintiffs brought claims under the
Federal Tort Claims Act (“FTCA”), contesting a Consumer Product Safety Commission decision
to ban the use of a certain chemical used to treat fabric.
Applying
Rosas
,
St. Tammy Parish
, and
Jayvee Brand
here, the court concludes that it
lacks subject matter jurisdiction to review Count IV of Plaintiffs’ Complaint. Once again, the
count alleges FEMA violated the APA by failing to publish rules and policies before using those
unpublished rules and policies to deny Plaintiffs relief. Resolving that claim, however, would
require the court to evaluate the type of discretionary agency action—i.e., the decision not to
publish certain rules and policies in the Federal Register—that ,
St. Tammy Parish
, and
Jayvee Brand
make clear is barred from judicial review. An illustration makes the point. Take,
for instance, Plaintiffs’ allegation that FEMA unlawfully applied unpublished caps and floors on
the amount of assistance provided regardless of disaster damages. Compl. ¶ 40(a). To evaluate
*7
the lawfulness of that action, the court first would have to address the predicate question of whether
the APA required FEMA to publish such aid restrictions in the first place. That inquiry, in turn,
would immerse the court in the difficult task of resolving whether caps and floors are:
(1) “statements of the general course and method by which [FEMA’s] functions are channeled and
determined”; (2) “rules of procedure”; (3) “substantive rules of general applicability adopted as
authorized by law”; or (4) “statements of general policy or interpretations of general applicability
formulated and adopted by the agency”—each of which must be published in the Federal Register.
5 U.S.C. § 552(a)(1)(B)–(D). Pursuing that course, however, would run the court headlong into
the shield erected by the Stafford Act’s discretionary function exception. Even if FEMA erred by
not publishing its caps and floors in the Federal Register before applying them to Plaintiffs’ claims,
such an error is “an abuse in the exercise of policy making, and hence an abuse of discretion
shielded from liability” under the Stafford Act.
See Jayvee Brand
,
III
Plaintiffs dispute the court’s dismissal of Count IV, in large part, based on
La Union Del
Pueblo Entero (LUPE) v. FEMA
, in which the United States District Court for the Southern District
of Texas held that FEMA’s decision to use an unpublished policy—known as the “deferred
maintenance” rule—to deny disaster relief claims violated the APA.
See
Pls.’ Mot. at 1–2 (citing
* * * *9 Accordingly, for the foregoing reasons, the court finds that it properly dismissed Count IV of Plaintiffs’ Complaint and denies Plaintiffs’ Motion for Reconsideration.
Dated: October 6, 2017 Amit P. Mehta
United States District Judge
Notes
[1] Plaintiffs do not ask the court to reconsider its dismissal of Counts I through III.
[2] At the time of , the agency responsible for overseeing disaster relief was the Department of Labor, not FEMA.
See Rosas
,
[3] The court discerns no material difference between the challenge asserted in this case, brought under Section 552(a)(1), and the challenges in Rosas and St. Tammy Parish , brought under Section 553. Both types of challenges involve an alleged procedural violation of the APA and contest FEMA’s decision not to subject a rule or policy to public scrutiny. After all, just as FEMA exercises discretion when making a judgment under Section 553 as to whether a matter is a legislative rule that requires notice and comment or another type of action that is exempt from the notice- and-comment requirements, an agency exercises similar discretion in deciding under Section 552 whether a matter is a “statement[] of the general course and method by which [FEMA’s] functions are channeled and determined”; a “rule[] of procedure”; a “substantive rule[] of general applicability adopted as authorized by law”; or a “statement[] of general policy or interpretations of general applicability formulated and adopted by the agency.” 5 U.S.C. § 552(a)(1)(B)–(D).
[4] The court further supported that conclusion by reasoning that Congress did not intend for the FTCA to be used as an
additional means of “policing the internal procedures of governmental agencies.”
Jayvee Brand
,
[5] The court also has thoroughly reviewed the published decisions leading to the
LUPE
decision upon which Plaintiffs’
rely, and has similarly been unable to locate any analysis concerning whether the Stafford Act’s discretionary function
exception applied to the plaintiffs’ claim that FEMA’s use of the unpublished deferred maintenance rule violated the
APA.
See