The U.S. has experienced a large number of natural disasters requiring the immediate assistance that only the Federal Emergency Management Agency (FEMA) can provide. In Barbosa, et al., v. U.S. Department of Homeland Security and FEMA, decided March 1, the U.S. Court of Appeals for the District of Columbia Circuit provided a very informative discussion of the FEMA administrative review process, and held that a fundamental provision of the Stafford Act creates a jurisdictional bar to judicial review of administrative appeals of FEMA eligibility and assistance determinations. That bar is located at 42 U.S.C. § 5148.
In 2000, the Stafford Act was amended to enable FEMA to provide direct assistance to eligible individuals who suffered the consequences of a declared natural disaster. Previously, this aid was provided through federally-subsidized state disaster relief programs which did not result in timely financial assistance. FEMA promulgated the rules to implement this program in 2002, 67 F.R. 61452 (Sep. 30, 2002).
In Barbosa, a group of 26 individuals residing in Texas sought Stafford Act assistance following a series of storms in 2015 and 2016. They were dissatisfied with the their failure to receive any assistance or the amount of that assistance they did receive. They filed administrative appeals under the FEMA rules, 40 C.F.R. § 206.115, but did not receive all the relief they requested.
This lawsuit does not directly challenge these administrative decisions, but rather the perceived failure of FEMA to issue rules or regulations establishing the criteria by which their requests for relief were assessed under the law. The Court of Appeals responded by observing that the actions taken by FEMA were largely discretionary, and the Congress has limited the courts’ ability to review such discretionary actions by federal agencies. Indeed, the agency’s appeals rules flatly state that “the decision of the appellate authority is final.”