Petition for Writ of Certiorari — Daniel Barbosa, et al., Petitioners v. Department of Homeland Security, et al.
Supreme Court briefOct 18, 2019
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No. _______
In the Supreme Court of the United States
DANIEL BARBOSA, ET AL., PETITIONERS
v.
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY AND FEDERAL EMERGENCY MANAGEMENT
AGENCY, RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Jerome Wesevich
Texas RioGrande
Legal Aid
1331 Texas Avenue
El Paso, TX 79901
(915) 585-5120
jwesevich@trla.org
Amanda Flug Davidoff
Counsel of Record
Sullivan & Cromwell LLP
1700 New York Avenue, NW
Suite 700
Washington, DC 20006
(202) 956-7500
davidoffa@sullcrom.com
QUESTION PRESENTED
The Freedom of Information Act (“FOIA”), 5
U.S.C. § 552(a)(1), “require[s]” agencies to publish certain rules, a mandate that affords no discretion in furthering Congress’s goal to prevent the use of “secret
(agency) law.” NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 153 (1975). Congress protected FOIA and the
rest of the Administrative Procedure Act (“APA”) from
inadvertent amendment by directing that subsequent
statutes “may not be held to supersede or modify” the
APA unless they do so “expressly.” 5 U.S.C. § 559.
This petition concerns one such subsequent statute, the
Stafford Act, which contains no express reference to
the APA, and instead bars judicial review only of
claims concerning “a discretionary function or duty”
authorized by the Stafford Act itself. 42 U.S.C. § 5148.
Even though section 5148 lacks the express statement required by section 559, and without holding that
FOIA affords agencies any discretion to avoid publication, the D.C. Circuit held that the Stafford Act bars
review of whether the Federal Emergency Management Agency (“FEMA”) has published the materials
required by FOIA.
The question presented is whether section 5148
bars review of claims that FEMA uses secret law in violation of FOIA’s mandatory requirements.
II
PARTIES TO THE PROCEEDINGS AND
RULE 29.6 STATEMENT
Petitioners are Daniel Barbosa, Luis Barbosa, Ramon Bueno, Filiberto Chapa, Juanita Chavez, Maria de
la Fuente, Irma Duarte, Rosemary Duron, Gamaliel
Espinoza, Oscar Gallegos, Armando Garcia, Alicia Gonzales, Ruby Granados, Ricardo Hernandez, Jr., Leticia
Martinez, Candidado B. Mireles, Gilberto Mireles, Maria Moreno, Norberto Muñoz, Guadalupe V. Perez,
Jesica Reyes, Reynaldo Rosas, Armando Serna, Sylvia
Silguero, Enedina Vela, Ramiro Villegas, Jr., and La
Unión Del Pueblo Entero. Petitioners were the appellants in the court of appeals. Petitioner La Unión Del
Pueblo Entero and counsel Texas RioGrande Legal Aid
have no parent companies or stock.
Respondents are the United States Department of
Homeland Security and the Federal Emergency Management Agency (collectively, “FEMA”). Respondents
were the appellees in the court of appeals.
RELATED PROCEEDINGS
United States District Court (D.D.C.):
Barbosa v. U.S. Dep’t of Homeland Sec., No. 1:16cv-01843-APM (Oct. 6, 2017)
United States Court of Appeals (D.C. Cir.):
Barbosa v. U.S. Dep’t of Homeland Sec., No. 175206 (June 21, 2019)
III
TABLE OF CONTENTS
Introduction .................................................................. 1
Opinions Below .............................................................. 4
Jurisdiction .................................................................... 4
Provisions Involved....................................................... 4
Statement ...................................................................... 4
A. Statutory Framework ......................................... 4
1. The Stafford Act’s Individuals and
Households Program ..................................... 4
2. FEMA’s Unpublished Rules .......................... 6
3. The Administrative Procedure Act and the
Freedom of Information Act ......................... 8
B. Factual History ................................................... 9
C. Procedural History ........................................... 10
1. The District Court’s Decision ...................... 10
2. The D.C. Circuit’s Decision ......................... 11
Reasons For Granting The Petition .......................... 12
I. The D.C. Circuit erred in holding that the
Stafford Act deprives courts of jurisdiction to
hear FOIA claims. ................................................. 13
A. FOIA’s statutory mandate can be overcome
only by an express statutory statement, which
the Stafford Act does not contain..................... 14
B. The Stafford Act’s discretionary function
exception does not divest courts of jurisdiction
to enforce FOIA’s mandatory publication
requirement. ...................................................... 18
IV
II. The D.C. Circuit’s decision deepens a divide
among the courts of appeals over an important
issue, the enforceability of express-statement
requirements. ........................................................ 23
III.Whether judicial review is available to secure
FEMA’s compliance with FOIA is a recurring
question of exceptional importance to millions of
people. .................................................................... 30
Conclusion ................................................................... 33
Appendix A—Opinion of the Court of Appeals for the
District of Columbia Circuit (Mar. 1, 2019) ......... 1a
Appendix B—Opinion of the District Court for the
District of Columbia (July 11, 2017) ................... 14a
Appendix C—Denial of the Motion for
Reconsideration by the District Court for the
District of Columbia (Oct. 6, 2017) ..................... 48a
Appendix D—Statutory Provisions ......................... 59a
V
TABLE OF AUTHORITIES
Page(s)
Cases
ACLU v. NSA,
925 F.3d 576 (2d Cir. 2019) ..................................... 22
Am. Soc’y for Testing & Materials (ASTM) v.
Public.Resource.Org, Inc.,
896 F.3d 437 (D.C. Cir. 2018) ................................... 7
Animal Legal Def. Fund v. USDA,
935 F.3d 858 (9th Cir. 2019) .............................. 20, 22
Ass’n of Cmty. Orgs. for Reform Now v. FEMA,
463 F. Supp. 2d 26 (D.D.C. 2006) ........................... 31
BedRoc Ltd. v. United States,
541 U.S. 176 (2004) .................................................. 17
Bennett v. Spear,
520 U.S. 154 (1997) .................................................... 3
Berkovitz by Berkovitz v. United States,
486 U.S. 531 (1988) .................................................... 5
Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667 (1986) .................................................. 23
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) .................................................. 25
California v. Azar,
911 F.3d 558 (9th Cir. 2018) .................................... 23
Chiquita Brands Int’l, Inc. v. SEC,
805 F.3d 289 (D.C. Cir. 2015) ................................. 20
Church of Scientology of Calif. v. IRS,
792 F.2d 146 (D.C. Cir. 1986) ................................. 24
City of New York v. Permanent Mission of India
to United Nations,
618 F.3d 172 (2d Cir. 2010) ..................................... 23
VI
Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854 (D.C. Cir. 1980) ................................. 22
Coastal States Gas Corp. v. Dep’t of Energy,
644 F.2d 969 (3d Cir. 1981) ..................................... 22
Ctr. for Biological Diversity v. Kempthorne,
466 F.3d 1098 (9th Cir. 2006) .................................. 20
Dep’t. of Air Force v. Rose,
425 U.S. 352 (1976) .............................................. 8, 21
Dickinson v. Zurko,
527 U.S. 150 (1999) ............................................ 14, 25
Dorsey v. United States,
567 U.S. 260 (2012) ............................................ 15, 25
EPA v. Mink,
410 U.S. 73 (1973) .................................................... 21
Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018) .............................................. 15
Five Points Road Joint Venture v. Johanns,
542 F.3d 1121 (7th Cir. 2008) .................................. 23
Fletcher v. Peck,
6 Cranch 87 (1810) ................................................... 15
Gray Panthers v. Schweiker,
652 F.2d 146 (D.C. Cir. 1980) ................................... 2
Grizzle v. Pickands Mather & Co./Chisolm Mines,
994 F.2d 1093 (4th Cir. 1993) .................................. 26
Jarita Mesa Livestock Grazing Ass’n v. U.S.
Forest Serv.,
61 F. Supp. 3d 1013 (D.N.M. 2014) ........................ 29
Johnson v. United States,
520 U.S. 461 (1997) .................................................. 17
La Unión Del Pueblo Entero v. FEMA,
141 F. Supp. 3d 681 (S.D. Tex. 2015) ....................... 7
VII
Lane v. USDA,
120 F.3d 106 (8th Cir. 1997) .................................... 27
Lockhart v. United States,
546 U.S. 142 (2005) ...................................... 15, 25, 26
Lopez v. Davis,
531 U.S. 230 (2001) .................................................. 19
LUPE v. FEMA,
608 F.3d 217 (5th Cir. 2010) .................................... 31
Marcello v. Bonds,
349 U.S. 302 (1955) ............................................ 14, 25
McQuiggin v. Perkins,
569 U.S. 383 (2013) .................................................. 15
Mich. Catholic Conference & Catholic Family
Servs. v. Burwell,
755 F.3d 372 (6th Cir. 2014) .................................... 25
Morton v. Ruiz,
415 U.S. 199 (1974) .................................................... 1
N. Cal. Power Agency v. Morton,
396 F. Supp. 1187 (D.D.C. 1975) ............................ 20
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) ............................................ 21, 27
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) .................................................. 14
Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
138 S. Ct. 617 (2018) ................................................ 17
News-Press v. U.S. Dept. of Homeland Sec.,
489 F.3d 1173 (11th Cir. 2007) ................................ 30
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978) .................................................. 32
NLRB v. Sears, Roebuck & Co.,
421 U.S. 132 (1975) ........................................ 1, 20, 22
VIII
Parker Drilling Mgmt. Servs., Ltd. v. Newton,
139 S. Ct. 1881 (2019) .............................................. 15
Patchak v. Zinke,
138 S. Ct. 897 (2018) ................................................ 17
Perez v. Mortgage Bankers Ass’n,
135 S. Ct. 1199 (2015) .............................................. 26
Prof’l Reactor Operator Soc’y v. U.S. Nuclear Reg.
Comm’n,
939 F.2d 1047 (D.C. Cir. 1991) ............................... 27
Prost v. Anderson,
636 F.3d 578 (10th Cir. 2011) .................................. 17
Providence Journal Co. v. U.S. Dep’t of Army,
981 F.2d 552 (1st Cir. 1992) .................................... 22
Ridgely v. FEMA,
512 F.3d 727 (5th Cir. 2008) .................................... 31
Robinette v. Comm’r,
439 F.3d 455 (8th Cir. 2006) .............................. 23, 24
Schlefer v. United States,
702 F.2d 233 (D.C. Cir. 1983) ................................. 22
Skelton v. U.S. Postal Serv.,
678 F.2d 35 (5th Cir. 1982) ...................................... 22
Sorenson Commc’ns Inc. v. FCC,
755 F.3d 702 (D.C. Cir. 2014) ................................. 20
U.S. Dep’t. of Justice v. Reporters Comm. for
Freedom of the Press,
489 U.S. 749 (1989) ...................................... 12, 20, 21
United States v. Dixon,
648 F.3d 195 (3d Cir. 2011) ..................................... 24
United States v. Novak,
476 F.3d 1041 (9th Cir. 2007) .................................. 25
Watt v. Alaska,
451 U.S. 259 (1981) .................................................. 15
IX
Webster v. Doe,
486 U.S. 592 (1988) .................................................. 14
Statutes
1 U.S.C. § 109 .......................................................... 25, 26
5 U.S.C. § 552(a)(1) .............................................. passim
5 U.S.C. § 552(a)(4)(B)........................................ 2, 17, 20
5 U.S.C. § 559 ....................................................... passim
5 U.S.C. § 704 ............................................................ 2, 17
5 U.S.C. § 3347(a)(1) ..................................................... 26
6 U.S.C. § 314(a)(8) ......................................................... 5
12 U.S.C. § 5491(a) ........................................................ 26
15 U.S.C. § 1012 ............................................................ 26
26 U.S.C. § 3112 ............................................................ 26
28 U.S.C. § 1254(1) .......................................................... 4
28 U.S.C. § 2283 ............................................................ 26
42 U.S.C. § 2000bb-3(b) ................................................ 26
42 U.S.C. § 2000dd(c) ................................................... 26
42 U.S.C. § 5148 ................................................... passim
42 U.S.C. § 5151(a) ........................................................ 10
42 U.S.C. § 5174(c)(2) ..................................................... 6
42 U.S.C. § 5174(j) ........................................................ 10
42 U.S.C. § 5189a(c) ...................................................... 10
50 U.S.C. § 1547(a)(1) ................................................... 26
50 U.S.C. § 1812(b) ....................................................... 26
Pub. L. No. 79-404, 60 Stat. 237 (1946) ....................... 16
Pub. L. No. 89-487, 80 Stat. 250 (1966) ................... 8, 16
Pub. L. No. 89-554, 80 Stat. 378 (1966) ....................... 16
Pub. L. No. 93-288, 88 Stat. 143 (1974) ....................... 16
Pub. L. No. 106-390, 114 Stat. 1552 (2000) ................... 5
X
Tex. Gov’t Code Ann. §§ 311.001-.035......................... 26
Regulations
44 C.F.R. §§ 206.110-.120 ......................................... 6, 31
67 Fed. Reg. 61,446 (Sept. 30, 2002) ............................. 6
74 Fed. Reg. 4683 (Jan. 26, 2009) ................................ 27
78 Fed. Reg. 66,852 (Nov. 7, 2013) ................................ 6
81 Fed. Reg. 68,442 (Oct. 4, 2016) ................................. 6
Exec. Order No. 12,673, 54 Fed. Reg. 12,571 (Mar.
23, 1989) ...................................................................... 5
Other Authorities
Eric A. Posner & Adrian Vermeule, Legislative
Entrenchment: A Reappraisal, 111 Yale L.J.
1665 (2002) .......................................................... 27, 29
Eric M. Fraser, et al., The Jurisdiction of the D.C.
Circuit, 23 Cornell J.L. & Pub. Pol’y 131 (2013) .. 28
FEMA, Disaster Relief Fund: Monthly Report as
of September 30, 2019 (2019),
https://www.fema.gov/medialibrary/assets/documents/31789 ............................. 32
H.R. Rep. No. 104-859 (1996) ...................................... 21
IHP Unified Guidance, FEMA (Sept. 30, 2016),
https://www.fema.gov/ihp-unified-guidance ........... 6
John G. Roberts, Jr., What Makes the D.C. Circuit
Different? A Historical View, 92 Va. L. Rev.
375 (2006) .................................................................. 28
Kathryn A. Watts, Proposing a Place for Politics
in Arbitrary and Capricious Review, 119 Yale
L.J. 2 (2009) .............................................................. 29
Nicholas Quinn Rosenkranz, Federal Rules of
Statutory Interpretation, 115 Harv. L. Rev.
2085 (2002) ................................................................ 16
XI
Patricia M. Wald, Life on the District of Columbia
Circuit: Literally and Figuratively Halfway
Between the Capitol and the White House, 72
Minn. L. Rev. 1 (1987) ............................................. 28
Registration Intake and Individuals and Households (RI-IHP) Program Data, FEMA (Sept.
25, 2019), https://www.fema.gov/media-library/assets/documents/34752 ................................. 6
Robert T. Stafford Disaster Relief and Emergency
Assistance Act, FEMA (June 12, 2019, 9:25
AM), https://www.fema.gov/robert-t-stafforddisaster-relief-and-emergency-assistance-actpublic-law-93-288-amended .................................... 32
S. Rep. No. 89-813 (1965) ................................... 8, 12, 21
Sanne H. Knudsen & Amy J. Wildermuth, Lessons
from the Lost History of Seminole Rock, 22
Geo. Mason L. Rev. 647 (2015) ............................... 29
U.S. Dep’t of Justice, Attorney General’s Manual
on the Administrative Procedure Act (1947),
https://archive.org/details/AttorneyGeneralsMa
nualOnTheAdministrativeProcedureActOf1947 .. 27
U.S. Gov’t Accountability Office, Federal Disaster
Assistance: Federal Departments and Agencies
Obligated at Least $277.6 Billion During
Fiscal Years 2005 Through 2014 (2016),
https://www.gao.gov/assets/680/679977.pdf ...... 5, 32
INTRODUCTION
The Freedom of Information Act (“FOIA”) provides that “[e]ach agency shall separately state and
currently publish” all substantive rules of general applicability, interpretations of general applicability, and
the nature and requirements of all formal and informal
procedures available. 5 U.S.C. § 552(a)(1). These are
“matter[s] required to be published in the Federal
Register.” Id. Individuals cannot “in any manner . . .
be adversely affected” by rules that are not published
as required. Id. Congress intends these provisions and
the rest of FOIA to prevent agencies from using secret
law. Sears, 421 U.S. at 153; Morton v. Ruiz, 415 U.S.
199, 232-33 & n.27 (1974).
To ensure that the entire Administrative Procedure
Act (“APA”), including FOIA, is protected from inadvertent amendment, Congress mandated that a “[s]ubsequent statute may not be held to supersede or modify” FOIA or any other part of the APA, “except to the
extent that it does so expressly.” 5 U.S.C. § 559.
The facts are few and straightforward. Petitioners
claim that they witnessed disasters causing severe
damage to their homes. After FEMA denied them disaster assistance funds due to “insufficient damage,”
Petitioners attempted to appeal but were unable to effectively do so because FEMA does not disclose the
rules, policies, and procedures that it uses to determine
which damages qualify for assistance. FEMA marks
these standards “secret,” “not for public release,” and
“for agency internal use only.” Compl. ¶ 31.
2
Petitioners asserted FOIA claims challenging
FEMA’s use of secret law, and the D.C. Circuit agreed
that “[i]t is certainly difficult to muster an effective appeal if one is ignorant of the grounds upon which a
claim is denied.” App., infra, 9a-10a.1 Even so, the
D.C. Circuit held that courts lack jurisdiction to decide
whether FEMA uses secret law in violation of FOIA
due to the Stafford Act’s “discretionary function exception” in section 5148. Id. at 12a.
To reach this result, with no explanation, the D.C.
Circuit held that the APA’s express-statement requirement in section 559 does not apply to “jurisdictional”
statutes like the Stafford Act. App., infra, 12a. This
ignores that no such limitation appears in the text of
section 559. Instead, section 559 explicitly protects jurisdictional statutes from amendment, see 5 U.S.C.
§ 552(a)(4)(B); id. § 704, which means that it must limit
the application of subsequent jurisdictional statutes.
This holding places the D.C. Circuit among a minority
of courts of appeals that refuse to enforce statutory express-statement requirements. And because the D.C.
Circuit stated no basis for disregarding the unambiguous text of section 559—no reason rooted in structure,
history, or purpose—its refusal to apply express-statement requirements is limitless. Similarly limitless is
the danger that inheres when courts interpret a statute
Accord Gray Panthers v. Schweiker, 652 F.2d 146, 168-69 (D.C.
Cir. 1980) (“Without notice of the specific reasons for denial, a claimant is reduced to guessing what evidence can or should be submitted
in response and driven to responding to every possible argument
against denial at the risk of missing the critical one altogether.”).
1
3
without reference to statutory text, structure, history,
or purpose.
The D.C. Circuit’s ruling is flawed for a second reason that is independent of section 559. The D.C. Circuit
held that the Stafford Act’s “discretionary function exception” in section 5148 bars judicial review of FOIA
claims “regardless of whether § 552(a)(1), itself, is discretionary.” App., infra, 12a. This manifestly disregards the text of section 5148 and FOIA’s purpose and
history, as repeatedly decreed by this Court and all
other courts of appeals.
Petitioners do not claim that FOIA requires FEMA
to promulgate any new rules, or to change the substance of any rules. Instead, Petitioners only seek
FEMA’s publication of whatever rules FEMA chooses
to use. See Bennett v. Spear, 520 U.S. 154, 172 (1997)
(“It is rudimentary administrative law that discretion
as to the substance of the ultimate decision does not
confer discretion to ignore the required procedures of
decisionmaking.”). Consistent with the purposes of
FOIA and the APA, this ensures that the public knows
the rules that will be used to decide their claims and
appeals.
The Court should grant certiorari to rectify the
D.C. Circuit’s error in holding that the Stafford Act
modified FOIA without an express statement—an important issue and one on which the courts of appeals
are divided. Independently, this Court should grant
certiorari to hold that the Stafford Act’s discretionary
function exception does not bar review of whether an
agency has complied with FOIA’s mandatory publica-
4
tion requirements. This is a question of extreme importance to millions of people. Courts of appeals across
the nation have recognized the adverse impact that
FEMA’s vague published standards have on some of
the most vulnerable in society—those who must unexpectedly rely on disaster relief programs administered
under the Stafford Act.
OPINIONS BELOW
The opinion of the court of appeals, App., infra, 1a13a, is reported at 916 F.3d 1068. The opinion of the
district court, id. at 14a-47a, and the denial of the motion for reconsideration, id. at 48a-58a, are reported at
263 F. Supp. 3d 207 and 278 F. Supp. 3d 325, respectively.
JURISDICTION
The court of appeals entered judgment on March 1,
2019. A petition for rehearing was denied on June 21,
2019. The Chief Justice extended this petition’s filing
date to October 18, 2019, No. 19A186. The jurisdiction
of this Court rests on 28 U.S.C. § 1254(1).
PROVISIONS INVOLVED
The complete pertinent statutes are reproduced in
an appendix to this petition. App., infra, 59a-61a.
STATEMENT
A. Statutory Framework
1. The Stafford Act’s Individuals and Households
Program
Since 1974, the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (“Stafford Act”) has
5
governed the federal response to each major disaster
declared by a President. 42 U.S.C. §§ 5121, et seq. The
Stafford Act is comprised of dozens of programs that
are implemented before (planning), during (emergency), and after (recovery) disasters. Id.
By Executive Order, FEMA carries out most of the
President’s responsibilities under the Stafford Act. 6
U.S.C. § 314(a)(8); Exec. Order No. 12,673, § 1, 54 Fed.
Reg. 12,571 (Mar. 23, 1989). Relevant here, when “carrying out the provisions” of the Stafford Act, the federal government is not “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.” 42 U.S.C. § 5148. 2
In 2000, Congress combined two prior major disaster assistance programs into the Individuals and
Households Program (“IHP”), which is designed to
help families recover from disasters. Pub. L. No. 106390, § 206(a), 114 Stat. 1552, 1566 (2000) (codified at 42
U.S.C. § 5174). IHP has been implemented in hundreds of declared major disasters since its inception
and has delivered $22.8 billion total in disaster assistance to millions of people between 2005 and 2014. 3
The text of section 5148 is largely identical to text in the Federal Tort Claims Act, 28 U.S.C. § 2680(a), commonly called the “discretionary function exception.” See Berkovitz by Berkovitz v. United
States, 486 U.S. 531, 533 (1988).
3
U.S. Gov’t Accountability Office, Federal Disaster Assistance: Federal Departments and Agencies Obligated at Least $277.6
Billion During Fiscal Years 2005 Through 2014, at 28 (2016),
https://www.gao.gov/assets/680/679977.pdf; see also Registration Intake and Individuals and Households (RI-IHP) Program Data,
2
6
IHP includes several forms of assistance, including
home repair. 42 U.S.C. § 5174(c)(2) (repair); id.
§ 5174(c)-(e) (all forms).
On September 30, 2002, FEMA published “interim
final” IHP rules applying to all disasters declared after
October 14, 2002. 67 Fed. Reg. 61,446 (Sept. 30, 2002).4
These rules, codified at 44 C.F.R. §§ 206.110-.120, are
FEMA’s only published IHP eligibility standards that
have the force of law, and have remained in force since
2002, with but one minor substantive amendment. See
78 Fed. Reg. 66,852 (Nov. 7, 2013). 5
2. FEMA’s Unpublished Rules
FEMA uses unpublished rules, policies, and procedures to fill the many gaps left by its published rules.
See Compl. ¶ 93. FEMA’s unpublished policies appear
in an array of memoranda, manuals, guidelines, standard operating procedures, numbered policy catalogues,
and agency directives that are subject to change from
FEMA (Sept. 25, 2019) (listing 6,256,377 valid IHP registrations
since
2014),
https://www.fema.gov/media-library/assets/documents/34752.
4
In this action, Petitioners do not challenge the procedures
that FEMA used to produce its IHP rules. Rather, Petitioners challenge FEMA’s use of unpublished rules, procedures, and policies to
adversely affect them in violation of 5 U.S.C. § 552(a)(1).
5
FEMA has also published a 134-page document entitled “Individuals and Households Program Unified Guidance.” 81 Fed. Reg.
68,442 (Oct. 4, 2016) (referencing IHP Unified Guidance, FEMA
(Sept. 30, 2016), https://www.fema.gov/ihp-unified-guidance). This
document does not “have the force or effect of law.” Id. Even if it
had the force of law, this document would not cure the FOIA violations identified by Petitioners, because the document does not state
all of the rules that FEMA uses to determine IHP eligibility.
7
disaster to disaster and have not been published or referenced in the Federal Register. 6 Compl. ¶¶ 30, 93.
Some of these policies are “marked secret,” “for
agency internal use only,” and “not for public release.”
Compl. ¶ 31.
FEMA’s unpublished policies include binding, generally applicable substantive rules that narrow eligibility for assistance, including without limitation: (a) caps
and floors for each type of repair, which FEMA calls
“line items”; (b) exclusions of certain repairs regardless of disaster damage; (c) restrictive definitions of
what repairs are allowed to make a home “habitable”;
(d) restrictive standards of proof for disaster causation; and (e) presumptions as to pre-existing damage.
See Compl. ¶¶ 39-40; see also La Unión Del Pueblo Entero v. FEMA, 141 F. Supp. 3d 681, 698 (S.D. Tex. 2015)
(describing record evidence of unpublished rules). At
oral argument before the D.C. Circuit, FEMA’s counsel appeared to agree that FEMA maintains an array
of unpublished materials and identified no reason that
such materials should not be published. See, e.g., Oral
Argument at 46:30-49:51 (“[W]e have no objection to
publishing anything.”), Barbosa v. Dep’t of Homeland
Sec., 916 F.3d 1068 (D.C. Cir. 2019) (No. 17-5206),
Agencies routinely comply with section 552(a)(1) by including a
brief statement in the Federal Register referencing voluminous materials that are published outside the Federal Register, including materials published on agency websites. See Am. Soc’y for Testing &
Materials (ASTM) v. Public.Resource.Org, Inc., 896 F.3d 437, 458
(D.C. Cir. 2018). The materials at issue here, however, have never
been published anywhere, including on websites.
6
8
https://www.cadc.uscourts.gov/recordings/recordings.nsf.
3. The Administrative Procedure Act and the
Freedom of Information Act
The APA, 5 U.S.C. §§ 551, et seq., requires agencies
to disclose certain information through APA amendments known as FOIA. Pub. L. No. 89-487, 80 Stat. 250
(1966) (codified as amended at 5 U.S.C. § 552). Congress intended FOIA to implement “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.”
Dep’t. of Air Force v. Rose, 425 U.S. 352, 360-61 (1976)
(quoting S. Rep. No. 89-813, at 3 (1965)).
Relevant here, FOIA requires publication of “statements of the general course and method by which [an
agency’s] functions are channeled and determined, including the nature and requirements of all formal and
informal procedures available” and “substantive rules
of general applicability adopted as authorized by law,
and statements of general policy or interpretations of
general applicability formulated and adopted by the
agency.” 5 U.S.C. § 552(a)(1). It further states that “a
person may not in any manner be required to resort to,
or be adversely affected by, a matter required to be
published in the Federal Register and not so published.” Id.
Moreover, the APA specifically states that a “[s]ubsequent statute may not be held to supersede or modify
[the APA] . . . except to the extent that it does so expressly.” 5 U.S.C. § 559. So to the extent a later-intime statute, such as the Stafford Act, seeks to modify
9
FEMA’s duties under the APA or FOIA, it must state
that it is doing so in no uncertain terms.
B. Factual History
In late 2015 and early 2016, a series of storms devastated a broad section of Texas, causing extensive
property damage and dozens of casualties. Compl.
¶¶ 69-70. Petitioners include 26 South Texas homeowners who were inside their homes and watched the
storms tear their roofing and walls apart and flood
their homes. Compl. ¶¶ 9-10. President Obama declared these storms “major disasters” and made IHP
assistance available. Compl. ¶ 71. Each individual Petitioner applied to FEMA for assistance. FEMA dispatched an independent contractor to inspect each Petitioner’s home and record the information sought by
FEMA. Compl. ¶¶ 42, 75.
Based exclusively on these inspections, FEMA sent
one of two form letters. The first, an “Eligible for
Home Repair” letter, informed applicants that they
were eligible for home repair assistance and the
amount of assistance that FEMA would provide. However, that letter did not provide any information about
how FEMA had calculated the amount of assistance
granted, or what criteria or standards FEMA relied
upon to make its determinations. Compl. ¶¶ 60-61.
The second letter, sent to applicants who were
found ineligible, contained the statement: “Based on
your FEMA inspection, we have determined that the
disaster has not caused your home to be unsafe to live
in. This determination was based solely on the damage
10
to your home that is related to this disaster.” The letter further stated that applicants had the right to appeal and provided the following instruction: “Please
send us documents . . . to show that the damage to your
home was caused by the disaster and has caused unsafe
or unlivable conditions.” The letter said nothing else
about what facts or standards FEMA relied upon to
deny assistance or would use to decide any appeal of its
determination. Compl. ¶ 62.
All 26 individual Petitioners appealed FEMA’s determinations. FEMA denied 21 of their appeals in
whole and five in part, all without further explanation.
C.A. J.A. 36-95. FEMA did not disclose what criteria
or standards it applied to conclude that Petitioners
were ineligible for the assistance that they asserted
they needed to make their homes safe. Without knowing the factual or legal reasons why they were denied
assistance, Petitioners could not know what information was necessary to prove their eligibility in the
first instance or on appeal.
C. Procedural History
1. The District Court’s Decision
Petitioners filed this action on September 15, 2016,
claiming that FEMA’s failure to publish the rules that
it uses to decide IHP eligibility violates:
(a) the Stafford Act, 42 U.S.C. §§ 5151(a), 5174(j),
and 5189a(c), requirements directing FEMA to
publish rules and regulations that ensure fair
distribution of assistance, the carrying out of
IHP, and fair appeal procedures; and
11
(b) FOIA, 5 U.S.C. § 552(a)(1), requiring agencies
to publish their substantive and procedural
rules that adversely affect applicants.
Compl. ¶¶ 81-95. Only the second violation is at issue
in this petition.
On July 11, 2017, the district court dismissed all of
Petitioners’ claims under Rules 12(b)(1) and 12(b)(6).
App., infra, 17a. The district court held that “[e]ven if
the court were to have jurisdiction over Plaintiffs’
[Stafford Act] claims, FEMA’s IHP regulations nonetheless constitute reasonable interpretations of the
Stafford Act and therefore Plaintiffs have failed to
state a claim.” Id. at 41a. In a footnote, the district
court also dismissed Petitioners’ FOIA claim, stating
that it “depend[ed] upon” Petitioners’ dismissed Stafford Act claims. Id. at 47a n.7.
Petitioners sought reconsideration, noting that
their FOIA claim was independent of the separate
Stafford Act counts of the complaint. Doc. 18. In an
October 6, 2017, order, the district court agreed that
Petitioners’ FOIA claim was “a different type of claim.”
App., infra, 50a. Yet the district court denied reconsideration, concluding that because FOIA is a “procedural” statute, it lacked subject matter jurisdiction to
review Petitioners’ FOIA claim pursuant to the Stafford Act’s discretionary function exception, 42 U.S.C.
§ 5148. App., infra, 51a.
2. The D.C. Circuit’s Decision
The court of appeals affirmed, only briefly discussing FOIA. App., infra, 2a, 11-13a. While the court was
“not . . . unmoved by the contentions that ‘secret law’
12
was being used,” id. at 13a, the court held that the Stafford Act’s discretionary function exception, 42 U.S.C.
§ 5148, deprived it of jurisdiction to decide these contentions. App., infra, 12a. First, the court held that
section 5148 departed from FOIA and thus applied—
even though section 5148 lacks the express statement
required by section 559—because section 559 does not
apply to jurisdictional statutes like section 5148. The
opinion, however, ventured no reason why section 559
does not apply to jurisdictional statutes. Id. The court
then held that the Stafford Act’s discretionary function
exception applied “regardless of whether § 552(a)(1),
itself, is discretionary.” Id.
The D.C. Circuit ordered FEMA to respond to a
timely petition for rehearing en banc, but then denied
rehearing. C.A. Denial of Pet. for Reh’g En Banc.
REASONS FOR GRANTING THE PETITION
The purpose of the Freedom of Information Act “is
to ensure informed citizens, [which is] vital to the functioning of a democratic society.”
FOIA,
https://www.FOIA.gov (last visited October 15, 2019).
Congress intends FOIA to “promote honesty and reduce waste . . . by exposing official conduct to public
scrutiny,” U.S. Dep’t. of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 772 n.20 (1989),
and “to establish a general philosophy of full agency
disclosure unless information is exempted under
clearly delineated statutory language,” S. Rep. No. 89813, at 3 (1965). The clear and mandatory directives in
FOIA’s text, 5 U.S.C. § 552(a)(1), and the express prohibition on implied amendments, 5 U.S.C. § 559, confirm this reading.
13
Ignoring the text of section 559, the D.C. Circuit
held that FOIA was amended sub silentio by the laterenacted Stafford Act’s discretionary function exception. The court further held that this discretionary
function exception strips courts of jurisdiction to hear
claims that FEMA violated FOIA’s mandatory requirements. The plain language of FOIA and the Stafford Act required the opposite result.
These two errant holdings will have widespread impact and thus warrant certiorari. The D.C. Circuit’s
decision threatens the express-statement requirements upon which the APA and other statutes depend
for stability. This threat is magnified by the division
among the courts of appeals—which the D.C. Circuit’s
decision deepens—as to whether courts must follow
Congress’s plain mandates in express-statement requirements. The practical consequence of the D.C.
Circuit’s decision is that millions of disaster survivors
must appeal without knowing the facts or legal standards that produced the challenged result. This Court’s
guidance is needed.
I.
The D.C. Circuit erred in holding that the Stafford Act deprives courts of jurisdiction to hear
FOIA claims.
The text of 5 U.S.C. §§ 552(a)(1) and 559 unequivocally create mandatory publication requirements that
can be overcome only by express congressional direction. The D.C. Circuit’s contrary ruling is not based
upon any statutory text, structure, history, or purpose.
See App., infra, 11a-13a.
14
A. FOIA’s statutory mandate can be overcome
only by an express statutory statement, which
the Stafford Act does not contain.
FOIA requires each federal agency to publish its
“substantive rules of general applicability” and its
“formal and informal procedures,” among others. 5
U.S.C. § 552(a)(1). This provision goes on to say that
“a person may not in any manner be required to resort
to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published.” Id.
Congress protected section 552(a)(1) and other
APA provisions from unintentional modification by decreeing that a “[s]ubsequent statute may not be held to
supersede or modify [the APA] . . . except to the extent
that it does so expressly.” 5 U.S.C. § 559. Because of
this command that any modification must be express,
this Court has cautioned that “[e]xemptions from the
terms of the Administrative Procedure Act are not
lightly to be presumed.” Marcello v. Bonds, 349 U.S.
302, 310 (1955) (citing virtually identical precursor to
section 559); see also Dickinson v. Zurko, 527 U.S. 150,
155 (1999) (Section 559 expresses a “statutory intent
that legislative departure from the norm must be
clear.”); Webster v. Doe, 486 U.S. 592, 607 n.* (1988)
(Scalia, J., dissenting) (A subsequent statute “becomes
subject to . . . the APA unless specifically excluded.”).
This Court’s understanding of section 559’s express-statement requirement aligns with this Court’s
presumption against implied repeals. See, e.g., Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 662 (2007) (noting that “‘repeals by implication are
15
not favored’ and will not be presumed unless the ‘intention of the legislature to repeal [is] clear and manifest’”
(quoting Watt v. Alaska, 451 U.S. 259, 267 (1981))).
Likewise, section 559 and other express-statement
requirements are consistent with the canon of construction that courts should interpret statutes in light
of their predecessors, given the “commonplace of statutory interpretation that ‘Congress legislates against
the backdrop of existing law.’” Parker Drilling Mgmt.
Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019)
(quoting McQuiggin v. Perkins, 569 U.S. 383, 398 n.3
(2013)); see also, e.g., Dorsey v. United States, 567 U.S.
260, 274 (2012) (treating an earlier statute “as setting
forth an important background principle of interpretation”); Lockhart v. United States, 546 U.S. 142, 148
(2005) (Scalia, J., concurring) (“[E]xpress-statement
requirements may function as background canons of
interpretation of which Congress is presumptively
aware.”). This is consistent with the “duty to interpret
Congress’s statutes as a harmonious whole rather than
at war with one another.” Epic Sys. Corp. v. Lewis, 138
S. Ct. 1612, 1619 (2018). 7
Because express-statement requirements operate as canons of
construction, they present no constitutional issue. See Part II, infra
(collecting cases that enforce express-statement requirements without noting any constitutional issues); see also Lockhart, 546 U.S. at
147-48 (Scalia, J., concurring) (noting that while “[o]ne legislature . . .
cannot abridge the powers of a succeeding legislature,” expressstatement requirements “function as background canons of interpretation” (quoting Fletcher v. Peck, 6 Cranch 87, 135 (1810))). Ultimately, express-statement requirements are “unobjectionable,”
given that “the door would remain open to exercise the full panoply
of legislative power” by simply using the express statement required.
7
16
Here, the Stafford Act’s discretionary function exception was not enacted until 1974, rendering it “subsequent” to section 552(a)(1), which was enacted in
1966.8 Therefore, the discretionary function exception
only supplants FOIA if it contains an express statement to that effect—which it does not. See 42 U.S.C.
§ 5148. Not only does section 5148 fail to mention the
APA or any sort of publication requirement under section 552(a)(1), but its terms expressly limit its application to “carrying out the provisions” of Title 42, Chapter 68—the U.S. Code chapter on disaster relief—and
therefore could not “expressly” “supersede or modify”
5 U.S.C. § 552(a)(1).
Yet after recognizing that “modifications of the
APA’s applicability . . . must be specifically stated,” and
despite identifying no such specific statement, the D.C.
Circuit held that the Stafford Act’s discretionary function exception “remains a barrier” to consideration of
Petitioners’ FOIA claim. App., infra, 12a. Without citation to any authority or reason, the D.C. Circuit
Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2118 (2002).
8
The APA became law in 1946, including a virtually identical precursor to the express-statement requirement of section 559. Pub. L.
No. 79-404, § 12, 60 Stat. 237, 244 (1946) (“No subsequent legislation
shall be held to supersede or modify the provisions of this Act except
to the extent that such legislation shall do so expressly.”). FOIA
amended the APA in 1966 and added the relevant “adversely affected” language of section 552(a)(1). Pub. L. No. 89-487, 80 Stat. 250
(1966). Also in 1966, Congress moved the express-statement requirement to section 559. Pub. L. No. 89-554, 80 Stat. 378, 388 (1966).
Section 5148, on the other hand, was not enacted until 1974 in the
Disaster Relief Act of 1974, a precursor to the Stafford Act. Pub. L.
No. 93-288, 88 Stat. 143, 149 (1974).
17
simply declared that section 5148 is a “jurisdictional
limitation on judicial power,” and that section 559 does
not govern such jurisdictional limitations. Id.
This decision was error. The text of section 559 applies the express-statement requirement to every
“[s]ubsequent statute” without any hint of exception—
not even for a jurisdictional statute. See 5 U.S.C. § 559.
Because the plain language of section 559 is unambiguous, the “inquiry begins with the statutory text, and
ends there as well.” See Nat’l Ass’n of Mfrs. v. Dep’t of
Def., 138 S. Ct. 617, 631 (2018) (quoting BedRoc Ltd. v.
United States, 541 U.S. 176, 183 (2004) (plurality opinion)). “[T]he Supreme Court has held that . . . precedent doesn’t authorize courts of appeals to create out
of whole cloth exceptions to duly enacted statutes or
rules.” Prost v. Anderson, 636 F.3d 578, 592 n.11 (10th
Cir. 2011) (citing Johnson v. United States, 520 U.S.
461 (1997)). There is nothing unique about a jurisdictional statute that exempts it from the APA’s expressstatement requirement for a “[s]ubsequent statute.”
See 5 U.S.C. § 559. Indeed, this Court treats jurisdictional statutes on par with substantive statutes. See
Patchak v. Zinke, 138 S. Ct. 897, 906 (2018) (“Statutes
that strip jurisdiction ‘chang[e] the law’ . . . as much as
other exercises of Congress’ legislative authority.”).
The structure of section 559 underscores this conclusion. Section 559 forbids subsequent statutes from
superseding or modifying “this subchapter [or] chapter
7,” which include two statutes that are themselves jurisdictional: 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 704.
Any subsequent statute that purports to modify these
18
jurisdictional provisions must itself necessarily be jurisdictional—while still being subject to the expressstatement requirement of section 559. This clearly
demonstrates that section 559 applies to jurisdictional
and non-jurisdictional statutes alike. The D.C. Circuit’s patent disregard of this statutory structure cannot be correct.
Had the D.C. Circuit followed this correct analysis,
it would have concluded that, because the Stafford Act
did not amend the APA, the court had jurisdiction to
decide Petitioners’ FOIA claims. Instead, the D.C.
Circuit’s misapplication of the express-statement requirement of section 559 effectively created an exception that allows FEMA to disregard section 552(a)(1)
in implementing disaster recovery programs. This outcome is directly at odds with Congress’s intent in requiring limited and express exemptions from FOIA.
Moreover, as discussed below, this decision raises an
important issue that has divided the courts of appeals.
B. The Stafford Act’s discretionary function exception does not divest courts of jurisdiction to
enforce FOIA’s mandatory publication requirement.
Even if section 5148 could be read to modify the
APA, its discretionary function exception still would
not apply in the present case. By its own terms, the
text of section 5148 only divests courts of jurisdiction
over claims involving a “discretionary function or duty
on the part of a Federal agency . . . in carrying out the
provisions of this chapter.” The term “this chapter” is
Title 42, Chapter 68, the U.S. Code chapter on disaster
relief, which does not include FOIA, 5 U.S.C. § 552. See
19
42 U.S.C. § 5148. The D.C. Circuit itself even noted
that Congress “specifically limited [its] jurisdiction to
review discretionary decisions under the Stafford Act.”
App., infra, 12a. Yet the D.C. Circuit failed to identify
one discretionary action by FEMA under the Stafford
Act that implicated section 5148 and divested the court
of its jurisdiction, even admitting that it had made no
determination of whether the obligations imposed by
section 552(a)(1) are in any way discretionary. See id.
This is an unsupportable reading of section 5148. Without a discretionary act, section 5148 does not deprive
courts of jurisdiction.
Moreover, there is no such discretionary act here;
section 552(a)(1) is mandatory. “Congress use[s] ‘shall’
to impose discretionless obligations.” Lopez v. Davis,
531 U.S. 230, 241 (2001). Section 552(a)(1) states that
an “agency shall” publish in the Federal Register “all
formal and informal procedures,” which FEMA has not
done, as can be seen most clearly with regards to the
appeals process. 5 U.S.C. § 552(a)(1)(B) (emphasis
added). The statute further states an “agency shall”
publish in the Federal Register “substantive rules of
general applicability,” which FEMA has not done, as
can be seen most clearly with regards to what types of
damage are and are not eligible for financial assistance.
Id. § 552(a)(1)(D) (emphasis added). Finally, section
552(a)(1) states that these “matter[s] [are] required to
be published in the Federal Register” and that a person may not be “adversely affected” by a “matter . . .
not so published.” Id. § 552(a)(1) (emphasis added).
Courts acknowledge that section 552(a)(1) affords
agencies no discretion: “The statute clearly provides
20
that no administrative action taken pursuant to unpublished procedures can be allowed to stand against a
person adversely affected thereby.” N. Cal. Power
Agency v. Morton, 396 F. Supp. 1187, 1191 (D.D.C.
1975), aff’d sub nom. N. Cal. Power Agency v. Kleppe,
539 F.2d 243 (D.C. Cir. 1976); see also Animal Legal
Def. Fund v. USDA, 935 F.3d 858, 871 (9th Cir. 2019)
(Section 552(a)(1) imposes a “dut[y]” on agencies and
section 552(a)(4)(B) “creates the machinery to address
violations, such as authorizing judicial review”); id. at
876 (FOIA’s affirmative publication requirements
“aren’t optional.” (quoting Ctr. for Biological Diversity
v. Kempthorne, 466 F.3d 1098, 1103 (9th Cir. 2006) (alterations omitted))). And agencies have “no interpretive authority” over FOIA, so they have no discretion
to decide whether their rules are covered by section
552(a)(1). See Sorenson Commc’ns Inc. v. FCC, 755
F.3d 702, 706 (D.C. Cir. 2014); accord Chiquita Brands
Int’l, Inc. v. SEC, 805 F.3d 289, 293 (D.C. Cir. 2015)
(Courts “review de novo [agency] interpretation of
FOIA.”).
Beyond this clear error of textual statutory interpretation, the panel’s jurisdiction-stripping decision
conflicts with FOIA’s purpose and history.
FOIA “represents a strong congressional aversion
to ‘secret (agency) law.’” Sears, 421 U.S. at 153. Congress designed FOIA to “promote honesty and reduce
waste . . . by exposing official conduct to public scrutiny,” and that FOIA’s “primary objective is the elimination of ‘secret law.’” Reporters Comm. for Freedom
of the Press, 489 U.S. at 772 n.20 (quotation omitted).
This Court has also observed that FOIA is particularly
21
concerned with records that “shed[] light on an
agency’s performance of its statutory duties.” Id. at
773. At bottom, “FOIA is often explained as a means
for citizens to know what their Government is up to.
This phrase should not be dismissed as a convenient
formalism.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (internal quotation
marks omitted).
Likewise, Congress has made clear that the purpose of FOIA is “to establish a general philosophy of
full agency disclosure unless information is exempted
under clearly delineated statutory language.” S. Rep.
No. 89-813, at 3 (1965). When considering later regulatory reform, Congress deliberately highlighted the
“high standard to which Congress intends to hold agencies” via section 552(a)(1) and the APA, specifically citing section 552(a)(1) as evidence that “fair notice of a
regulation’s actual requirements is a procedural right
bestowed upon the regulated public.” H.R. Rep. No.
104-859, at 5-6 (1996) (emphasis added).
Indeed, Congress intentionally deleted a prior
FOIA provision permitting non-disclosure for “secrecy
in the public interest” and replaced it with text “stating
repeatedly that official information shall be made available . . . ‘for public inspection’” and that “[a]ggrieved
citizens are given a speedy remedy in district courts.”
EPA v. Mink, 410 U.S. 73, 79 (1973); see also Dep’t of
Air Force, 425 U.S. at 360-61 (noting that the original
APA included certain public disclosure requirements
which proved ineffective, so Congress replaced them
with FOIA’s stronger requirements).
22
Until now, the courts of appeals have uniformly rejected agency use of secret law. See, e.g., Providence
Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 556
(1st Cir. 1992) (“The FOIA was designed to expose the
operations of federal agencies to public scrutiny without endangering efficient administration, as a means of
deterring the development and application of a body of
‘secret law.’” (quoting Sears, 421 U.S. at 138)); ACLU
v. NSA, 925 F.3d 576, 593-94 (2d Cir. 2019) (noting that
FOIA prohibits agencies’ use of binding “working law”
that is undisclosed); Coastal States Gas Corp. v. Dep’t
of Energy, 644 F.2d 969, 983 n.69 (3d Cir. 1981) (explaining “[c]ongressional concern with the plight of
those forced to litigate with agencies on the basis of secret laws” was a reason for the passage of FOIA); Skelton v. U.S. Postal Serv., 678 F.2d 35, 41 (5th Cir. 1982)
(noting that FOIA’s prohibition on “secret law” extends beyond “final opinions”); Animal Legal Def.
Fund v. USDA, 935 F.3d 858, 868 (9th Cir. 2019) (“Congress crafted the affirmative portion of FOIA to prevent the proliferation of ‘secret law.’”); Schlefer v.
United States, 702 F.2d 233, 244 (D.C. Cir. 1983) (“A
strong theme . . . has been that an agency will not be
permitted [by FOIA] to develop a body of ‘secret law,’
used by it in the discharge of its regulatory duties and
in its dealings with the public, but hidden [from publication].” (quoting Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 867 (D.C. Cir. 1980))).
In sum, the text of FOIA, the APA, and the Stafford
Act are more than sufficient to demonstrate error, and
FOIA’s purpose and history underscore this clear result. Indeed, by making judicial review of FEMA’s failure to publish its rules effectively impossible, the court
23
of appeals trampled the “strong presumption that Congress intends judicial review of administrative action.”
Bowen v. Mich. Acad. of Family Physicians, 476 U.S.
667, 670 (1986). The D.C. Circuit was wrong to allow
FEMA to decide individuals’ eligibility for relief by a
set of rules to which the public has no access.
II.
The D.C. Circuit’s decision deepens a divide
among the courts of appeals over an important
issue, the enforceability of express-statement
requirements.
The courts of appeals are divided over whether
courts must follow express-statement requirements, or
whether courts can ignore these congressional mandates. The Second, Seventh, Eighth, Ninth, and Tenth
Circuits enforce express-statement requirements as
written. See City of New York v. Permanent Mission
of India to United Nations, 618 F.3d 172, 203 (2d Cir.
2010) (“Subsequent organic statutes may supersede or
modify APA requirements, but they must do so expressly.”); Five Points Road Joint Venture v. Johanns, 542 F.3d 1121, 1126-27 (7th Cir. 2008) (“Section
559 therefore prevents a statute from amending the
APA by implication.”); Robinette v. Comm’r, 439 F.3d
455, 460 (8th Cir. 2006) (“Nothing in the text or history
of the [subsequent statute] clearly indicates an intent
by Congress” to “endorse[] such a departure” from the
APA.);9 California v. Azar, 911 F.3d 558, 579 (9th Cir.
The D.C. Circuit’s holding that section 559 does not apply to subsequent “jurisdictional” statutes, App., infra, 12a, particularly conflicts with Robinette, where the Eighth Circuit held that a subsequent
statute regulating “judicial review” did not modify the APA because
9
24
2018) (Where subsequent statutory provisions “neither
contain express language exempting agencies from the
APA nor provide alternative procedures,” those provisions “stand in contrast to other provisions . . . found to
be express abdications of the APA.”); Little Sisters of
the Poor Home for the Aged, Denver, Colo. v. Burwell,
794 F.3d 1151, 1159 n.4 (10th Cir. 2015) (“The [Affordable Care Act], enacted in 2010, did not contain a specific exemption and is subject to” the express-statement requirement in the Religious Freedom Restoration Act (RFRA).), vacated on other grounds 136 S. Ct.
1557 (2016).
Here, the D.C. Circuit has joined the Third and
Sixth Circuits in refusing to enforce express-statement
requirements.10 See United States v. Dixon, 648 F.3d
195, 199-200 (3d Cir. 2011) (joining the First and Eleventh Circuits, and explicitly disagreeing with the Sev-
the subsequent statute lacked the express statement required by section 559. Robinette, 439 F.3d at 459-60. Specifically, Robinette found
that a tax law which expanded the scope of judicial review of IRS levies but lacked an express statement modifying the APA did not displace the APA’s requirement that judicial review be conducted solely
on the administrative record. Like the tax law in Robinette, here, the
Stafford Act modified the scope of judicial review of FEMA’s actions
without expressly purporting to curtail the APA, yet the D.C. Circuit
reached the opposite result, finding that the Stafford Act did modify
the APA. App., infra, 12a.
10
The D.C. Circuit’s decision in this case clarifies its earlier unclear position that the APA can “presumably be repealed by implication,” even though section 559 “increases the burden that must be
sustained before an intent to depart from the Administrative Procedure Act can be found.” Church of Scientology of Calif. v. IRS, 792
F.2d 146, 149 n.2 (D.C. Cir. 1986).
25
enth Circuit, in holding that a subsequent statute reducing penalties for certain drug offenses be applied
retroactively “[n]otwithstanding the absence of [an express] statement” required by 1 U.S.C. § 109); Mich.
Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 383 n.8 (6th Cir. 2014) (“Congress
may reject the application of RFRA to a later-enacted
statute without explicitly stating that RFRA does not
apply.”), vacated on other grounds 135 S. Ct. 1914
(2015).
This division among the courts of appeals is exacerbated by conflicting guidance from this Court. On one
hand, this Court has held that “Congress remains free
to express [its] intention either expressly or by implication as it chooses” regardless of a statutory expressstatement requirement. Dorsey, 567 U.S. at 274; accord Lockhart, 546 U.S. at 148 (Scalia, J., concurring)
(reading this Court’s decision in Marcello, 349 U.S. at
302, to permit implied modification of the APA despite
the APA’s express-statement requirement). Yet in
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682
(2014), this Court recently held that RFRA’s indistinguishable express-statement requirement is enforceable. Id. at 719 & n.30. And in Dickinson v. Zurko, this
Court explained that the APA’s express-statement requirement means that “legislative departure from the
[APA] must be clear.” 527 U.S. at 155.
In light of this authority, the en banc Ninth Circuit’s observation from a decade ago remains true today: the enforceability of statutory express-statement
requirements is an “open question.” United States v.
Novak, 476 F.3d 1041, 1054 n.12 (9th Cir. 2007) (en
26
banc); see also Grizzle v. Pickands Mather & Co./Chisolm Mines, 994 F.2d 1093, 1098 n.7 (4th Cir. 1993) (observing split). This Court’s resolution of this open
question is urgently necessary for three reasons.
First, express-statement requirements tend to appear in statutes of obvious importance that form the
foundation of how our government is supposed to function. See, e.g., 1 U.S.C. § 109 (effect of existing liabilities when a statute is repealed); 5 U.S.C. § 3347(a)(1)
(appointment to federal office, including the Executive
Office of the President); 12 U.S.C. § 5491(a) (financial
services regulation); 15 U.S.C. § 1012 (federal insurance regulation); 26 U.S.C. § 3112 (tax exemptions); 28
U.S.C. § 2283 (Anti-Injunction Act); 42 U.S.C.
§ 2000dd(c) (treatment of detainees); 42 U.S.C.
§ 2000bb-3(b) (Religious Freedom Restoration Act); 50
U.S.C. § 1547(a)(1) (War Powers Resolution); 50
U.S.C. § 1812(b) (foreign intelligence surveillance); see
also Lockhart, 546 U.S. at 149 (Scalia, J., concurring)
(It is “not uncommon for Congress” to enact expressstatement requirements.). 11
The APA, including its express-statement requirement at issue here, is a prime example. The APA describes “the full extent of judicial authority to review
executive agency action for procedural correctness.”
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1207
State Legislatures also commonly mandate how all statutes are
to be construed by courts. See, e.g., Tex. Gov’t Code Ann. §§ 311.001.035 (Texas Code Construction Act). These statutes commonly contain express-statement requirements. See, e.g., id. § 311.022 (“A statute is presumed to be prospective in its operation unless expressly
made retrospective.”).
11
27
(2015); see also U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 5
(1947) (The APA is “notable in the history of the governmental process” because the “Act sets a pattern designed to achieve relative uniformity in the administrative machinery of the Federal Government.”),
https://archive.org/details/AttorneyGeneralsManualOnTheAdministrativeProcedureActOf1947. FOIA,
contained within the APA, is foundational to democracy itself. See Favish, 541 U.S. at 172; Freedom of
Information Act: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4683
(Jan. 26, 2009). The D.C. Circuit’s lax application of
section 559 subjects the APA to inadvertent amendment, thus threatening this foundational statute in
spite of Congress’s expressed intent. See Prof’l Reactor Operator Soc’y v. U.S. Nuclear Reg. Comm’n, 939
F.2d 1047, 1052 (D.C. Cir. 1991) (Congress “meant [the
APA] to be operative ‘across the board’ in accordance
with its terms” and apply “equally to agencies and persons.” (quoting H.R. Rep. No. 79-1980, at 16 (1946))).
Without this Court’s review, all statutes bearing express-statement requirements are equally subject to
unintended amendment.
Second, express-statement requirements promote
“a compromise between stability and flexibility” in
foundational statutes like the APA. Eric A. Posner &
Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665, 1672 (2002). Such requirements promote stability by establishing default rules
upon which the government and public can rely. See
id.; see also, e.g., Lane v. USDA, 120 F.3d 106, 109 (8th
28
Cir. 1997) (describing section 559 as a “logical approach given the variety of issues and forums covered
by the APA and the possibility that Congress would inadvertently adopt a provision that conflicted with the
APA”). And express-statement requirements retain
flexibility by permitting subsequent legislatures to either expressly repeal an express-statement requirement altogether if it becomes unworkable, or to create
case-by-case exceptions by using the required express
statement. This Court’s review is necessary to ensure
that the proper balance is struck between the APA’s
stability and flexibility.
Third, because the D.C. Circuit has joined the circuit split and sided with the courts of appeals willing to
disregard express-statement requirements, its incorrect decision will have a widespread impact. In part
due to its vast administrative law caseload, 12 the D.C.
Circuit is recognized “as a court with special responsibility to review legal challenges to the conduct of the
national government,” as “there is a far more extensive
body of administrative law developed there than in
other circuits.” John G. Roberts, Jr., What Makes the
D.C. Circuit Different? A Historical View, 92 Va. L.
Rev. 375, 389 (2006). Absent review by this Court, and
“[A]dministrative and civil suits involving the federal government comprise nearly 50% of the D.C. Circuit’s docket, compared to
the nationwide average of 20%.” Eric M. Fraser, et al., The Jurisdiction of the D.C. Circuit, 23 Cornell J.L. & Pub. Pol’y 131, 138 (2013);
accord Patricia M. Wald, Life on the District of Columbia Circuit:
Literally and Figuratively Halfway Between the Capitol and the
White House, 72 Minn. L. Rev. 1, 2-3 (1987) (noting that the D.C. Circuit “get[s] the lion’s share of the ‘political’ cases”).
12
29
given the D.C. Circuit’s reputation as expert in administrative law, the decision in this case will lead to similar incorrect outcomes across the country. 13 The end
result is that every time Congress legislates in a way
that inadvertently conflicts with the APA, a court, relying on the D.C. Circuit’s decision in the present case,
could find that the statute exempted yet another
agency from the strictures of the APA. “[T]he Congress that enacted the APA might justifiably have been
concerned that future Congresses”—or, in this case,
the federal judiciary—“would turn the procedural
framework for the administrative state into swiss
cheese.” Posner & Vermeule, supra, at 1698. This
Court’s review is warranted.
Courts look to the D.C. Circuit for its administrative law expertise. One has described its influence as “quasi-primacy in administrative law” and noted that “the D.C. Circuit carries clout in the
field of administrative law that goes well beyond that which a nonparent Circuit usually wields.” See Jarita Mesa Livestock Grazing
Ass’n v. U.S. Forest Serv., 61 F. Supp. 3d 1013, 1071 & n.20 (D.N.M.
2014). Commentators likewise recognize the D.C. Circuit’s influence
in administrative law. See, e.g., Kathryn A. Watts, Proposing a Place
for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 19
(2009) (describing the D.C. Circuit as “by far the most important
court in the country when it comes to federal administrative law”);
Sanne H. Knudsen & Amy J. Wildermuth, Lessons from the Lost
History of Seminole Rock, 22 Geo. Mason L. Rev. 647, 655 (2015)
(“[T]he D.C. Circuit is viewed as the expert and trendsetter in administrative law.”).
13
30
III.
Whether judicial review is available to secure
FEMA’s compliance with FOIA is a recurring
question of exceptional importance to millions
of people.
In addition to the issue of whether courts must interpret statutes in light of earlier express-statement
requirements, there is another reason why this Court
should grant review. The panel held that claims seeking to enforce the publication requirements of FOIA
are jurisdictionally barred by a discretionary function
exception. That is a holding with serious and systemic
ramifications.
FEMA is often criticized for failing to follow the requirements of the Stafford Act and FOIA, even by its
own inspector general:
“[T]he [OIG] report found that FEMA
designated Miami-Dade County eligible
for IHP assistance without a proper preliminary damage assessment, that claims
were not properly verified, that guidelines for making awards were generally
lacking, that oversight of inspections was
deficient, and that funds disbursed were
not based on actual losses,” News-Press
v. U.S. Dept. of Homeland Sec., 489 F.3d
1173, 1182 (11th Cir. 2007);
“Even FEMA seems to implicitly recognize that [its IHP regulations] are rather poor . . . . One hopes that the new
regulations FEMA is considering will
give affected parties more guidance about
31
whether the damage to their homes will
count as ‘disaster-related,’” LUPE v.
FEMA, 608 F.3d 217, 224 n.3 (5th Cir.
2010); 14
“Examination of the notice letters and
other correspondence found in the record
convinces us that FEMA could measurably improve the navigability of its processes by providing applicants with more
understandable explanations of its ineligibility determinations.”
Ridgely v.
FEMA, 512 F.3d 727, 741 (5th Cir. 2008).
See also Ass’n of Cmty. Orgs. for Reform Now v.
FEMA, 463 F. Supp. 2d 26, 35 (D.D.C. 2006) (Leon, J.)
(describing FEMA’s eligibility explanations as “Kafkaesque”).
The concerns animating these suits would be resolved if FEMA were simply to publish the rules that
it has already written and already uses, as required by
FOIA. Yet the strained reading of section 5148 employed by the D.C. Circuit yields the opposite result,
insulating FEMA from complying with FOIA’s publication requirement, and not just for the Individuals
and Households Program, but for all disaster relief
programs authorized by the Stafford Act. Notably, the
On their face, FEMA’s current IHP regulations remain thoroughly precatory (some 76 times, they say what FEMA “may” do, not
what it will do, to decide applications) and incomplete (at most they
state some eligibility criteria without ever stating what criteria render a person eligible for assistance, or how FEMA calculates the
amount of assistance). See 44 C.F.R. §§ 206.110-.120.
14
32
Stafford Act “constitutes the statutory authority for
most Federal disaster response activities especially as
they pertain to FEMA and FEMA programs,” including disaster unemployment assistance, crisis counseling, hazard mitigation, and emergency preparedness
programs, among many others. Robert T. Stafford Disaster Relief and Emergency Assistance Act, FEMA
(June 12, 2019, 9:25 AM), https://www.fema.gov/robert-t-stafford-disaster-relief-and-emergency-assistance-act-public-law-93-288-amended.
A decision that FEMA and its Stafford Act programs are exempt from section 552(a)(1) of FOIA effectively exempts an agency with over $40 billion in
budget authority from oversight by the American people—oversight promised by Congress through FOIA.
See FEMA, Disaster Relief Fund: Monthly Report as
of
September
30,
2019,
at
4
(2019),
https://www.fema.gov/media-library/assets/documents/31789. This is particularly egregious given the
millions of people who rely on IHP, let alone FEMA’s
other disaster relief programs. See Registration Intake and Individuals and Households (RI-IHP) Program Data, FEMA (Sept. 25, 2019) (listing 6,256,377
valid
IHP
registrations
since
2014),
https://www.fema.gov/media-library/assets/documents/34752. The “basic purpose of FOIA is to ensure
an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed.”
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978). People are at their most vulnerable as they recover from a natural disaster or other emergency, and
33
are least likely to be able to navigate an opaque bureaucracy governed by unpublished rules. Despite this, the
D.C. Circuit’s decision holds that there is no mechanism that would allow the American people to ensure
an informed citizenry. It bars the only mechanism to
force a government agency tasked with administering
disaster programs to publish in the Federal Register
how those programs will be administered.
The D.C. Circuit explicitly recognized the practical
consequence of its ruling: disaster survivors must appeal without knowing the facts or legal standards used
to render the decision from which they appeal. App.,
infra, 9a-10a & n.7, 13a. This is so foreign to settled
administrative practice—and indeed to appellate practice throughout the United States—as to merit this
Court’s scrutiny.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted.
Jerome Wesevich
Texas RioGrande
Legal Aid
1331 Texas Avenue
El Paso, TX 79901
(915) 585-5120
jwesevich@trla.org
OCTOBER 18, 2019
Amanda Flug Davidoff
Counsel of Record
Sullivan & Cromwell LLP
1700 New York Avenue, NW
Suite 700
Washington, DC 20006
(202) 956-7500
davidoffa@sullcrom.com
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________
Case No. 17-5206
DANIEL BARBOSA, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND FEDERAL EMERGENCY M ANAGEMENT
AGENCY, APPELLEES
__________
Argued:
Nov. 19, 2018
Decided:
Mar. 1, 2019
__________
Before: KATSAS, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.
2a
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN .
SILBERMAN , Senior Circuit Judge: A number of applicants sought Stafford Act economic relief from FEMA
because of storm damage. They, accompanied by La
Union del Pueblo Entero, appeal the district court’s
dismissal. We, however, agree with the district court.
We lack jurisdiction over their claims because of a statutory preclusion of judicial review.
I.
The Stafford Act authorizes the President to provide
relief in response to “major disasters.” The President has
delegated authority under the Stafford Act to the Federal
Emergency Management Agency (“FEMA”), a subdivision of the Department of Homeland Security. In 2000,
Congress established the Federal Assistance to Individuals and Households Program. Unlike the traditional approach of Stafford Act programs, which disburse federal
funds to the states, which in turn disburse those funds to
individuals, under this program, the federal government
may provide forms of direct relief to individuals and
households after a major disaster has been declared by
the President.1
The statute creating the program contains three
specific statutory provisions designed to guide its implementation. They call for the issuance of regulations
as follows:
(1) “The President shall issue, and may alter and
amend, such regulations as may be necessary for the
1
See 42 U.S.C. §§ 5121 et seq.
3a
guidance of personnel carrying out Federal assistance
functions at the site of a major disaster or emergency.
Such regulations shall include provisions for insuring
that the distribution of supplies, the processing of applications, and other relief and assistance activities
shall be accomplished in an equitable and impartial
manner, without discrimination on the grounds of race,
color, religion, nationality, sex, age, disability, English
proficiency, or economic status.” 42 U.S.C. § 5151(a)
(emphasis added);
(2) “The President shall prescribe rules and regulations to carry out this section, including criteria,
standards, and procedures for determining eligibility
for assistance.” 42 U.S.C. § 5174(j) (emphasis added);
(3) “The President shall issue rules which provide for
the fair and impartial consideration of appeals under
this section.” 42 U.S.C. § 5189a(c) (emphasis added).
But there is a fourth statutory provision of the Stafford Act applying to this case, a preclusion of judicial
review, which governs our jurisdiction:
“The Federal Government shall not be liable for any
claim 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 (emphasis added).
* * *
The government has promulgated regulations pursuant to the statutory mandates. 2
We note that the regulations at times track the statutory language. Presumably, the statutory command to regulate anticipates
2
4a
Starting with 42 U.S.C. § 5151(a), the nondiscrimination mandate, FEMA issued a regulation that provides for nondiscrimination in disaster assistance. 3 Although, in part, it echoes the statutory language, it does
more. It also states “government bodies and other organizations [participating in Stafford Act programs]
shall provide a written assurance of their intent to comply with regulations relating to nondiscrimination,”
and provides that the agency “shall make available” to
“interested parties . . . information regarding” its nondiscrimination regulation. Perhaps most significant, as
the district court noted, the regulation states “Federal
financial assistance to the States or their political subdivisions is conditioned on full compliance with” regulations entitled “Nondiscrimination in Federally-Assisted Programs.” 4 That provision states explicitly:
“No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise
subjected to discrimination under any program to
which this regulation applies.” Inter alia, the nondiscrimination regulations identify specific discriminatory actions prohibited, require that assurances of nondiscrimination accompany applications, and contain extensive provisions regarding conducting compliance investigations.
FEMA has also promulgated regulations, purportedly, “to carry out” the program, “including criteria,
more than merely restating the statutory language. However, incorporating the statutory language into a broader regulatory framework
is understandable, especially when the statute arguably sets out only
the minimum standards of regulation.
3
44 C.F.R. § 206.11.
4
44 C.F.R. §§ 7.1 et seq.
5a
standards, and procedures for determining eligibility
for assistance,” as mandated by 42 U.S.C. § 5174(j). 5
The regulations include provisions calling for the payment of “necessary expenses” or “serious needs” for
those “unable to meet such expenses” caused by disasters “through other means.” This provision states the
maximum amount of assistance ($25,000, adjusted “annually to reflect changes in the Consumer Price Index”), the multiple types of assistance, the date of eligibility, the duration of assistance (not longer than 18
months unless exceptional circumstances exist), and
details about how assistance will be characterized and
treated (not counted as income, exemption from garnishment, and duplication of benefits). A regulation
also defines certain terms used in the regulations, including “[h]ousing costs,” “[s]afe,” and “[u]ninhabitable.” The regulations state the registration period (60
days after declaration of major disaster or emergency)
and provide for extensions and late registrations.
Another provision, of obvious significance, describes when funds for repairs will be granted (“[if:]
[t]he component [of a structure] was functional immediately before the declared event; [t]he component [of
a structure] was damaged, and the damage was caused
by the disaster; [t]he damage to the component [of a
structure] is not covered by insurance; and [r]epair of
the component [of a structure] is necessary to ensure
the safety or health of the occupant or to make the residence functional”). It further lists the components that
are eligible for repair through housing assistance (including “[s]tructural components of the residence,”
5
44 C.F.R. §§ 206.110 et seq.
6a
“[w]indows and doors,” and “[t]he Heating, Ventilation
and Air Conditioning system”).
Even more detail is provided by a provision that establishes nine “[c]onditions of eligibility” and ten
“[c]onditions of ineligibility.” “FEMA may only provide assistance” when the eligibility conditions have
been met. Assistance may be provided “[w]hen the individual or household has incurred a disaster-related
necessary expense or serious need in the state in which
the disaster has been declared, without regard to their
residency in that state.” These conditions also provide
for assistance even in some situations where individuals have insurance. Other conditions also describe the
necessary state of the renter’s or owner’s residence in
order to qualify for housing assistance: “primary residence has been destroyed, is uninhabitable, or is inaccessible.” The ten conditions of ineligibility speak to
circumstances in which the individuals or households
still have access to their homes or to accommodations,
have adequate insurance, or meet other criteria.
Of particular concern to Appellants, FEMA’s provisions governing appeals as mandated by 42 U.S.C.
§ 5189a(c) list the determinations applicants may appeal, state that “[a]ppeals must be in writing and explain the reason(s) for the appeal,” provide for requesting files related to the applicant, and describe the period of appeal and to whom appeals must be directed.
These provisions explain that an appellant will receive
“a written notice of the disposition of the appeal within
90 days of the receiving of the appeal,” and that “the
decision of the appellate authority is final.” The regulations also state that an appeal of a determination regarding repair assistance “must provide proof. . . that
7a
the component was functional before the declared
event and proof that the declared event caused the
component to stop functioning” and, if disputing the
amount of assistance granted, “must also provide justification for the amount sought.”
***
Appellants are twenty-six individuals who resided
in Texas and whose homes suffered damage during one
of three storms in 2015 and 2016 declared major disasters, accompanied by La Union del Pueblo Entero, a
non-profit organization. The individual Appellants all
sought relief through the program. After having applied, some of them received a letter granting benefits,
others a form letter denying benefits. All appealed.
Some were granted an increase in benefits, others were
denied any additional relief.
Appellants’ suit was dismissed by the district judge
on jurisdictional grounds, although the judge alternatively concluded the regulations satisfied the statute.
II.
It should be noted at the outset that Appellants
make no claim that they are entitled statutorily to any
specific amount of payments in response to their Stafford Act claims. Nor is it asserted that constitutional
due process is governing because it is not claimed that
Appellants have a property interest. Their primary
contention is rather that FEMA inadequately complied
with its statutory obligation to publish regulations that
would, inter alia, describe the criteria the agency has
used to determine whether and for how much their
claims were paid. Without such criteria, according to
Appellants, it is difficult to present a claim or for that
8a
matter appeal from a denial. Indeed, Appellants argue
that the actual process by which claims are evaluated—
we are told by contractors—is governed by “secret
law.”
The government insists the regulations satisfy the
statutory mandates, denies that there is any “secret
law” governing claims, and, in any event, contends that
the preclusion of judicial review ousts us of jurisdiction
to entertain Appellants’ claims. 6 (Interestingly, the
government does not rely on Chevron deference.)
Although we would normally turn our attention first
to our jurisdiction, as the district court noted, Barbosa
v. U.S. Dep’t of Homeland Sec. (Barbosa I), 263 F.
Supp. 3d 207, 215-16 (D.D.C. 2017), to decide whether
the preclusion of judicial review applies, it is necessary
to determine whether the agency’s actions are discretionary—which obliges us to compare those actions
with the statute. Indeed, the Fifth Circuit faced with a
similar case, La Union del Pueblo Entero v. Fed.
Emergency Mgmt. Agency (LUPE), 608 F.3d 217 (5th
Cir. 2010), held that FEMA’s regulations satisfied one
of the statutory provisions, 42 U.S.C. § 5174(j), without
even considering the judicial review preclusion. The
The preclusion language could be thought to sound more like a
limitation on a cause of action, but because it implicates sovereign
immunity, the district court and we see it as jurisdictional. See
Dalehite v. United States, 346 U.S. 15, 24, 31-32 (1953); see also Morris v. Washington Metro. Area Transit Auth., 781 F.2d 218, 221 (D.C.
Cir. 1986). To be sure, the Supreme Court has recently tightened the
concept of jurisdiction, see, e.g., Reed Elsevier, Inc. v. Muchnick, 559
U.S. 154, 160-63 (2010), but even if the preclusion provision were regarded as a limitation on a cause of action, our analysis would be the
same.
6
9a
court concluded that the regulations “significantly narrow[] the universe of potentially eligible disaster victims.” LUPE, 608 F.3d at 223.
Appellants direct their argument that the regulations are inadequate primarily to FEMA’s alleged failure to sufficiently specify the criteria for eligibility and
for amounts of reimbursement. They rely on two of our
cases, American Airlines, Inc. v. Transportation Security Administration, 665 F.3d 170 (D.C. Cir. 2011)
and Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir.
2011). We think those cases are instructive but not persuasive precedent because the statutory mandates
were more specific. In American Airlines, Congress
had directed in hoc verba that the Transportation Security Administration develop a priority list for reimbursement of airport security projects. The TSA, however, added an escape clause allowing it to deviate on
“a case-by-case” basis that essentially modified—almost nullified—the congressional command. Am. Airlines, 665 F.3d at 177. And similarly in Oceana, the Department of Commerce frustrated a statutory command that it adopt a standardized reporting methodology by adding “an exception so vague as to make the
rule meaningless.” Oceana, 670 F.3d at 1241.
As for Appellants’ argument in this case, that
FEMA’s regulations lack adequate criteria, we agree
with the Fifth Circuit that the extensive list of eligible
and ineligible claims certainly narrows the type of
claims that the agency will grant. We admit that we are
more troubled by the regulations’ treatment of appeals—which, it will be recalled, are required to be
“fair.” It is certainly difficult to muster an effective appeal if one is ignorant of the grounds upon which a
10a
claim is denied. 7 Indeed, we have said if a constitutionally protected property interest is involved—which is
not this case—a statement of reasons explaining a denial may well be required if an appeal right is effective.
Lightfoot v. District of Columbia, 448 F.3d 392, 398
(D.C. Cir. 2006) (per curiam).
It is unnecessary, however, for us to decide whether
the appeals regulations are “fair” because we conclude
the preclusion of review limits our authority to challenge FEMA’s regulations. The parties do not dispute
that the appropriate test, as the district court recognized, is the test the Supreme Court used to interpret
similar language in the Federal Tort Claims Act. See
Barbosa I, 263 F. Supp. 3d at 216. If the challenged
agency act involves “an element of judgment or choice”
and the agency’s “judgment is of the kind that the discretionary function was designed to shield,” our review
is precluded. United States v. Gaubert, 499 U.S. 315,
322-23 (1991) (citations omitted). We have little doubt
that the statutory requirements for regulations rely on
the discretionary judgment of FEMA; the range of
choice that FEMA can employ is quite wide.
The Supreme Court has concluded the discretionary function exception to judicial review is inapplicable
under the first prong of the test only if “a federal statute . . . specifically prescribes a course of action” to be
followed, Berkovitz v. United States, 486 U.S. 531, 536
(1988), and that is not this case. We need not decide
Moreover, since the appeals regulations impose no time limit on
FEMA to turn over information in an individual’s “file” following a
request, see 44 C.F.R. § 206.115(d), there is no guarantee that this
information (whose contents are nowhere specified) will be received
within the 60-day window to lodge an appeal, id. § 206.115(a).
7
11a
whether if FEMA failed to issue regulations at all
would the preclusion of review still apply; the agency
has issued a great deal in the form of regulations supplemented by interpretive guidance—some were issued after the Fifth Circuit case, LUPE.8
III.
Appellants, perhaps recognizing that their direct
attack on the regulations would run into a jurisdictional barrier, presented a creative alternative argument. They turn away from the Stafford Act to the
Freedom of Information Act (“FOIA”) to expose the
“secret law” that they suspect is used to deny claims
and appeals. They rely on 5 U.S.C. § 552(a)(1), which
obliges agencies to publish, inter alia, “substantive
rules of general applicability adopted as authorized by
law, and statements of general policy or interpretations of general applicability formulated and adopted
by the agency.” 5 U.S.C. § 552(a)(1)(D).
We have held, however, that that section cannot be
enforced by a judicial mandate to publish materials in
the Federal Register, see Kennecott Utah Copper
Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191, 1202-03
(D.C. Cir. 1996); it is only if a person dealing with an
agency is “adversely affected” by a matter that should
have been published can he or she get relief. 5 U.S.C.
We have held a failure to promulgate regulations at all in light
of a statutory mandate to be illegal. See, e.g., Ethyl Corp. v. EPA, 306
F.3d 1144, 1146 (D.C. Cir. 2002) (citations omitted) (EPA ignored
statutory mandate to “by regulation establish methods and procedures” by creating “a framework for automobile manufacturers to
develop their own tests.”). But Appellants are misguided in relying
on those cases here.
8
12a
§ 552(a)(1). Appellants claim that the “secret law” employed by FEMA with regard to claims and appeals adversely affects them so therefore they are entitled to
have their Stafford Act cases reopened.
It is probable that the sanction in that section is designed for a case like Satellite Broadcasting Co., Inc.
v. FCC, 824 F.2d 1 (D.C. Cir. 1987), where an application for a license was improperly rejected because it
was filed at the wrong location, despite the fact that the
FCC had never published the right location. But even
assuming one could stretch “adverse affect” to refer to
denied Stafford Act claims, we think § 552(a)(1) cannot
be used to allow us to review Stafford Act regulations,
still less to reopen FEMA decisions. The preclusion of
judicial review remains a barrier.
To be sure, modifications of the APA’s applicability, as Appellants point out, must be specifically stated,
5 U.S.C. § 559, but the preclusion of judicial review is a
jurisdictional limitation on judicial power. A FOIA
claim cannot be used to create judicial authority to review Stafford Act claims, regardless of whether
§ 552(a)(1), itself, is discretionary. 9
After all, Congress specifically limited our jurisdiction to review discretionary decisions under the Stafford Act. As such, it would be an improbable stretch to
use another unrelated statute to frustrate congressional intent.
The district court, assuming § 552(a)(1) applied to Stafford Act
challenges, reasoned that the preclusion of judicial review would still
govern because it would be discretionary as to what was published.
Barbosa v. U.S. Dep’t of Homeland Sec. (Barbosa II), 278 F. Supp.
3d 325, 328 (D.D.C. 2017).
9
13a
That is not to say that we were unmoved by the contentions that “secret law” was being used. So we were
encouraged to hear government counsel assure us that
additional policies for dealing with claims and appeals
were easily available to Appellants on the internet.
Moreover, a normal FOIA request would reach any
governing policies. At oral argument, counsel for
FEMA stated repeatedly that the agency would have
no objection to complying with specific requests for
documents so that the allegedly “secret law” can be
brought to light. So, to the extent Appellants wish to
seek additional materials beyond those already now
available to them, they may do so by making FOIA requests under 5 U.S.C. § 552(a)(3). And, of course, if
such requests are denied, they may seek further judicial review through FOIA under 5 U.S.C.
§ 552(a)(4)(B), a provision that they did not invoke in
this case.
We do not mean to suggest that the Stafford Act
cases can be reopened regardless of the result of any
subsequent FOIA litigation; the preclusion of judicial
review still governs. But if it should turn out that there
is something troubling in the files, there is always the
possibility of further legislation.
IV.
For the foregoing reasons, we affirm the district
court’s dismissal.
So ordered.
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APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________
Case No. 1:16-cv-01843 (APM)
DANIEL BARBOSA, ET AL.,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS .
__________
[Filed: July 11, 2017]
__________
MEMORANDUM OPINION
I. INTRODUCTION
In late 2015 and early 2016, a series of massive
storms devastated the State of Texas, causing millions
15a
of dollars in property damage and, tragically, dozens of
casualties. In response, the Federal Emergency Management Agency (“FEMA”)—the agency charged with
administering federal disaster relief—mobilized efforts to provide assistance to the affected individuals.
This case arises out of those efforts.
The President and, correspondingly, FEMA, derives the statutory authority to provide disaster relief
from the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121–5206 (“Stafford Act”). In 2000, Congress amended the Stafford
Act to enable FEMA to, among other things, provide
direct assistance to individuals under the Individuals
and Households Program (“IHP”), including financial
assistance for home repairs. Under the IHP, FEMA
may directly provide federal grants to qualified applicants, rather than require those individuals to seek
those grants through federally subsidized, state-run
disaster relief funds. The IHP amendments tasked
FEMA with designing and implementing the federal
grant program, in part, by issuing rules and regulations governing the program. FEMA subsequently issued a set of rules and regulations purporting to do just
that.
Plaintiffs include 26 individuals whose homes were
severely damaged during the 2015–2016 storms, and
applied to FEMA for home repair assistance under the
IHP, but had their applications denied, in whole or in
part. Plaintiffs claim that FEMA violated federal law
when it chose to disclose neither the legal standards it
used to evaluate their applications nor the reasons for
denying them full relief. So, Plaintiffs filed this suit to
compel FEMA to articulate those standards, to shed
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light on the IHP process, and to reconsider their applications. Specifically, Plaintiffs charge FEMA with (1)
failing to comply with its congressional mandate under
the Stafford Act to promulgate regulations that “carry
out” the IHP, 42 U.S.C. § 5174(j), and (2) relying on
“secret rules” in non-public documents to deny their
IHP applications in violation of 5 U.S.C. § 552(a)(1).
For relief, Plaintiffs ask the court to order FEMA to
promulgate regulations that (1) define the eligibility
criteria for home repair assistance relief under the
IHP, (2) detail the process for appealing application denials, and (3) insure the equitable and impartial administration of the IHP. Additionally, Plaintiffs ask the
court to order FEMA to reconsider their applications
under these new regulations.
Before the court is Defendants’ Motion to Dismiss
and Plaintiffs’ Motion for Summary Judgment. Defendants move to dismiss the Complaint on the ground
that the court lacks subject matter jurisdiction, because the United States has not waived its sovereign
immunity from suit. Defendants point to the Stafford
Act’s “discretionary function exception,” which bars
federal courts from reviewing FEMA’s discretionary
decisions. Defendants contend that the agency’s decisions concerning the content and specificity of its regulations are discretionary and, therefore, cannot be the
subject of judicial review. See 42 U.S.C. § 5148. Further, Defendants argue that, even if the court has jurisdiction, Plaintiffs have failed to state a claim for relief because its IHP rules and regulations, as currently
constituted, do exactly what Congress commanded.
Expectedly, Plaintiffs view FEMA’s actions, or inaction, differently. They contend that the court has jurisdiction because FEMA’s regulations are not covered
17a
by the Act’s discretionary function exception. They
also assert that FEMA has not, as Congress directed,
promulgated the necessary regulations to implement
the IHP. On that basis, Plaintiffs move for summary
judgment on Counts I–III of their Complaint, seeking
a judgment in their favor that FEMA violated federal
law by issuing deficient regulations.
Having given careful consideration to the parties’
arguments, the court agrees with Defendants that the
Stafford Act’s discretionary function exception bars
Plaintiffs’ challenge to FEMA’s IHP rulemaking. Accordingly, the court grants Defendants’ Motion to Dismiss and denies Plaintiffs’ Motion for Summary Judgment.
II. BACKGROUND
A. Statutory and Regulatory Background
Congress passed the Stafford Act (“the Act”), originally known as the Disaster Relief Act of 1974, to provide federal assistance when disaster strikes. See 42
U.S.C. § 5121 et seq. The Act authorizes the President
to declare a major disaster and, where appropriate, direct “[f]ederal agencies . . . [to] provide assistance essential to meeting immediate threats to life and property resulting from [the] major disaster.” Id.
§ 5170b(a). The President is authorized to delegate his
authority under the Act to a federal agency, see id.
§ 5164, which President George H.W. Bush did in 1989,
delegating most of that authority to the Federal Emergency Management Agency (“FEMA”), which is now
part of the Department of Homeland Security (collectively, “Defendants”). Exec. Order No. 12,673: Delegation of Disaster Relief and Emergency Assistance
Functions, 54 Fed. Reg. 12,571, § 1 (Mar. 23, 1989).
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FEMA, in turn, is responsible for promulgating the
regulations necessary to implement the Act’s provisions, including those regulations that Plaintiffs challenge in their Complaint.
Plaintiffs’ lawsuit concerns FEMA’s “Individuals
and Households Program” (“IHP”). The IHP authorizes the President, through FEMA, to provide direct
federal assistance to disaster-affected individuals, as
opposed to indirect assistance through federally subsidized state disaster relief funds. 42 U.S.C. § 5174. The
Act includes three general eligibility requirements to
receive IHP aid: (1) the affected home must be owneroccupied, (2) the damages must be disaster-related,
and (3) the repairs must be necessary to return the affected home to sanitary and safe living conditions. Congress said no more about eligibility criteria. Instead, it
directed FEMA to “prescribe rules and regulations to
carry out [the IHP], including criteria, standards, and
procedures for determining eligibility.” Id.1
The Stafford Act and its amendments direct FEMA
to fill in specifics concerning two other statutory provisions that implicate the IHP. First, the Act requires
FEMA to “issue . . . . such regulations as may be necessary . . . for insuring that the” IHP is “accomplished
in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.” Id. § 5151(a). Second, it directs FEMA
to “issue rules which provide for the fair and impartial
The statute actually directs the “President” to act, but, of
course, with respect to disaster relief, the President acts through
FEMA. Therefore, for ease of reference, throughout this opinion, the
court will refer to Congress as having directed FEMA to act.
1
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consideration of appeals” from any denial of disaster
relief, including under the IHP. Id. § 5189a(c).
1. Regulations Promulgated to “Carry Out” the
IHP
FEMA has issued rules and regulations intended to
“carry out” the IHP, which are contained in sections
206.110 through 206.120 of Chapter 44 of the Code of
Federal Regulations. See 44 C.F.R. §§ 206.110–120.
The court here focuses on those sections relevant to the
provision of housing assistance. Section 206.110,
among other things, sets the maximum amount of assistance a qualified individual may receive, identifies
the types of assistance available, fixes the date of eligibility, defines the period of assistance, and places certain limitations and conditions on assistance recipients.
Id. § 206.110. Section 206.111 provides definitions of
terms used in the relevant regulations. Id. § 206.111.
Section 206.112 sets application deadlines following a
disaster declaration, including provisions governing
extensions of time and late applications. Id. § 206.112.
Section 206.113, entitled “Eligibility Factors,” lists
both qualifying and disqualifying factors for disaster
assistance under the IHP. Subsection (a) lists nine
“conditions of eligibility,” five of which address when
assistance is available to an applicant who has insurance. Id. § 206.113(a)(2)–(6). Two other factors specifically address that housing assistance is available (1)
when “the primary residence has been destroyed, is
uninhabitable, or is inaccessible,” or (2) when “a
renter’s primary residence is no longer available as a
result of the disaster.” Id. § 206.113(a)(8)–(9). Subsection (b) lists ten “conditions of ineligibility,” the first
five of which address housing assistance. For instance,
20a
individuals do not qualify if they are displaced from
properties other than their pre-disaster primary residence (e.g., a vacation home). Id. § 206.113(b)(1). Additionally, those individuals who have “adequate rentfree housing accommodations,” a “secondary or vacation residence within reasonable commuting distance
to the disaster area,” or a “rental property that meets
their temporary housing needs,” likewise are ineligible
to receive housing assistance. See id. §§ 206.113(b)(2),
(b)(3). Lastly, individuals who have adequate insurance
coverage, and receive timely compensation for their
damage from their insurer, do not qualify for housing
assistance. Id. § 206.113(b)(6).
Section 206.117 addresses the types of housing assistance available under the IHP. Qualified applicants
may receive financial assistance for temporary housing, direct assistance in the form of purchased or
leased temporary housing, and financial assistance for
the repair or replacement of real property. Id.
§ 206.117(b)(1)–(3). As to each of those types of assistance, Section 206.117 outlines additional requirements
or eligibility factors, see, e.g., id. §§ 206.117(b)(1)(i),
(b)(2)(i), (b)(3)(i), and identifies the component parts of
applicants’ homes that, if damaged, qualify for repair
assistance. See id. § 206.117(b)(2)(ii).
2. Regulations Concerning Appeals from Adverse Decisions
Pursuant to congressional directive, see 42 U.S.C. §
5189a, FEMA also has “issue[d] rules which provide for
the fair and impartial consideration of appeals[.]” Section 206.115 sets forth instructions and procedures for
appealing assistance decisions made under the IHP.
The section provides that an appeal must be filed
21a
within 60 days and enumerates the types of decisions
that can be appealed. 44 C.F.R. § 206.115(a). It further
instructs what an appeal petition must include, identifies to whom an appeal should be directed, and sets a
90-day deadline for FEMA or the State to provide a
written disposition of an appeal. Id. at §§ 206.115(b),
(c), (f). The regulation also permits an applicant to “ask
for a copy of information in his or her file by writing to
FEMA or the State as appropriate.” Id. at § 206.115(d).
Lastly, the regulation declares that the “decision of the
appellate authority is final.” Id. at § 206.115(f).
3. Regulations Concerning Nondiscrimination
in Disaster Assistance
Finally, Section 206.11 addresses Congress’ direction to “issue . . . such regulations as may be necessary”
to provide disaster assistance in a nondiscriminatory
manner. See 42 U.S.C. § 5151. That regulation requires
that “[a]ll personnel carrying out Federal major disaster or emergency assistance functions . . . shall perform
their work in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, or economic status.” 44
C.F.R. § 206.11(b). It also requires “government bodies
and other organizations [to] provide a written assurance of their intent to comply with regulations relating
to nondiscrimination.” Id. § 206.11(c).
B. Factual and Procedural Background
Plaintiffs include 26 Texas residents whose homes
were damaged in a series of severe storms in 2015 and
2016 (“Individual Plaintiffs”) and whose IHP applications FEMA denied either in whole or in part. Compl.,
ECF No. 1 [hereinafter Compl.], ¶¶ 9, 75. Also bringing
suit against FEMA is La Union del Pueblo Entero, a
22a
non-profit organization dedicated to assisting low-income families apply for government assistance. See id.
¶ 10.
Plaintiffs filed this matter on September 15, 2016,
seeking judicial review of FEMA’s IHP rulemaking under the Administrative Procedure Act (“APA”). Id.
¶ 79. Plaintiffs’ first three claims allege that FEMA has
violated congressional directives by (1) “failing to
adopt regulations needed to carry out [the IHP], including criteria, standards, and procedures for determining eligibility for assistance,” as required under 42
U.S.C. § 5174(j) (Count I), id. ¶¶ 81–85; (2) “failing to
adopt regulations that insure equitable and impartial
IHP administration,” as required under § 5151(a)
(Count II), id. ¶¶ 86–88; and (3) “failing to adopt regulations that provide for fair and impartial consideration
of appeals,” as required under § 5189a(c) (Count III),
id. ¶¶ 89–90. Plaintiffs also assert that FEMA uses “unpublished rules that adversely affect applicants” in violation of 5 U.S.C. § 552(a)(1) (Count IV). Id. ¶¶ 91–95.
Plaintiffs seek an order compelling Defendants to (1)
promulgate more detailed regulations concerning how
FEMA makes IHP eligibility and award decisions, (2)
cease from using unpublished rules in making such decisions, and (3) reconsider Plaintiffs’ disaster relief applications without the use of rules that were unpublished at the time FEMA denied their applications.
Id. ¶ 96.
Defendants move to dismiss the Complaint. They
contend that (1) the court lacks subject matter jurisdiction to hear Plaintiffs’ claims under Rule 12(b)(1) of
the Federal Rules of Civil Procedure and (2) Plaintiffs
failed to state a claim for relief under Rule 12(b)(6). See
23a
Defs.’ Mot. to Dismiss, ECF No. 4, Mem. in Supp.,
ECF No. 4-1 [hereinafter Defs.’ Mot]. Defendants assert that the court lacks subject matter jurisdiction because the United States has not waived its sovereign
immunity in this context. To support that position, Defendants point to the Stafford Act’s “discretionary
function exception,” which 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.” Id. at 7–13; 42 U.S.C. § 5148. Additionally,
Defendants argue that Plaintiffs have failed to state a
claim under the APA because the challenged regulations are permissible interpretations of the Stafford
Act’s directives. Defs.’ Mot. at 16–21.2
Plaintiffs both oppose Defendants’ Motion, see Pls.’
Opp’n to Defs.’ Mot., ECF No. 5 [hereinafter Pls.’
Opp’n], and move for partial summary judgment, see
Pls.’ Mot. for Partial Summ. J., ECF No. 8 [hereinafter
Pls.’ Mot.]. Taking both motions together, Plaintiffs argue that the “regulations” FEMA has promulgated do
not satisfy the congressional directive to issue or prescribe rules or regulations to implement the IHP.
Defendants originally argued that Count III of Plaintiffs’ Complaint was rendered moot when FEMA published its IHP guidelines
in September 2016. See Defs.’ Mot at 14. However, in light of the D.C.
Circuit’s recent decision in Cierco v. Mnuchin, 857 F.3d 407 (D.C.
Cir. 2017), Defendants withdrew that contention at the hearing on the
parties’ Motions. See Transcript of May 25, 2017, Hearing, ECF No.
13, at 41–42. Accordingly, the court will not address Defendants’
mootness argument.
2
24a
Compl. ¶¶ 82, 87, 90. Moreover, because Congress commanded FEMA to act, its failure to do so cannot be discretionary and therefore falls outside the Stafford
Act’s discretionary function exception. The court now
turns to those arguments.
III. LEGAL STANDARD
As noted, Defendants move to dismiss Plaintiffs’
Complaint both for lack of subject matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure, as well as for failure to state a claim upon which
relief can be granted under Rule 12(b)(6). A Rule
12(b)(1) motion to dismiss for lack of subject matter jurisdiction requires the court to assess its own power to
entertain the action. In order to withstand a Rule
12(b)(1) motion, “the plaintiff bears the burden of establishing [the court’s] jurisdiction by a preponderance
of the evidence.” Moran v. U.S. Capitol Police Bd., 820
F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992)). In contrast, a
Rule 12(b)(6) motion tests the legal sufficiency of a
complaint. See Howard Univ. v. Watkins, 857 F. Supp.
2d 67, 71 (D.D.C. 2012). Courts reviewing a motion to
dismiss under Rule 12(b)(6) must accept as true all factual allegations in the complaint and “grant [the] plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks and citation omitted).
Plaintiffs, for their part, move for summary judgment on Counts I–III. Typically, such motions are reviewed under the standard set forth in Rule 56. In
cases such as this one, however, that involve the review
25a
of an agency action under the APA, the Rule 56 standard does not apply. See Stuttering Found. of Am. v.
Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). Instead, “the district judge sits as an appellate tribunal”
and “[t]he ‘entire case’ on review is a question of law.”
Am. Biosci. Inc. v. Thompson, 269 F.3d 1077, 1083–84
(D.C. Cir. 2001) (citing cases).
IV. DISCUSSION
Ordinarily, a federal court must address a challenge
to its jurisdiction before considering the merits of the
parties’ claims. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 93–94 (1998). The court does so
here, but with a slight twist. To answer the jurisdictional question of whether Defendants are immune
from suit under the Stafford Act’s discretionary function exception, the court must determine whether Congress vested discretion in FEMA to issue regulations
and, if so, to what degree. The answer to that inquiry
necessarily lies in the text of the statutes themselves.
The exact same exercise applies to evaluating Plaintiffs’ APA claims under Chevron step one. See Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 842–44 (1984) (holding that the first step in evaluating claims brought under the APA involves determining “whether Congress has directly spoken to the precise question at issue”); see also Am. Trucking Ass’n v.
U.S. Dep’t of Transp., 166 F.3d 374, 378 (D.C. Cir.
1999) (“The Chevron test applies to issues of how specifically an agency must frame its regulations.”). Accordingly, the court’s jurisdictional and merits inquiries necessarily overlap. See Columbus Reg’l Hosp. v.
Fed. Emergency Mgmt. Agency, 708 F.3d 893, 898 (7th
Cir. 2013) (finding that the question of whether certain
26a
FEMA activities were discretionary under the Stafford
Act, and thus barred from judicial review, necessitated
“tak[ing] up the [plaintiff’s] claims on the merits”); cf.
Vt. Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765, 778–79 (2000) (asking first whether the
statute itself creates the cause of action to be asserted
against the states before the jurisdictional question of
Eleventh Amendment immunity). The court therefore
begins with a discussion of the discretionary function
exception and then turns to the statutes themselves.
A. Whether the Stafford Act’s Discretionary
Function Exception Precludes Review of
Plaintiffs’ Claims
As a general rule, the United States is immune from
suit unless it consents to be sued. See, e.g., United
States v. Mitchell, 463 U.S. 206, 212 (1983). Under the
Stafford Act, the United States only has partially
granted such consent. The Act’s discretionary function
exception prevents the federal government from being
held 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 the federal agency or an employee of the federal government
in carrying out the provisions of” Chapter 42 of the
United States Code. 42 U.S.C. § 5148 (emphasis
added). In United States v. Gaubert, the Supreme
Court established a two-part inquiry to determine the
circumstances in which the discretionary function exception will shield the United States from suit. 499 U.S.
322–23 (1991). In broad strokes, the Gaubert test first
determines whether a challenged act is discretionary
and, if so, then questions whether the act is of the kind
27a
that Congress intended to immunize from suit. Id. Although Gaubert concerned the discretionary function
exception under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2680(a), courts also apply
Gaubert to the Stafford Act’s exception because its text
mirrors that of the FTCA and because the Stafford
Act’s legislative history shows that Congress intended
to incorporate the FTCA standard. See, e.g., St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt.
Agency, 556 F.3d 307, 323 (5th Cir. 2009) (citing cases
and legislative history); In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 195–96 (2d Cir. 2008); Dureiko v. United States, 209 F.3d 1345, 1351 (Fed. Cir.
2000). This court will do the same.
Under the first prong of the Gaubert test, a court
asks whether an agency’s challenged acts “are discretionary in nature, acts that ‘involv[e] an element of
judgment or choice.” Gaubert, 499 U.S. at 322 (citation
and internal quotation marks omitted). The degree of
agency “choice” depends on the source of legal authority for the agency’s action. “If a statute, regulation, or
policy leaves it to a federal agency to determine when
and how to take action, the agency is not bound to act
in a particular manner and the exercise of its authority
is discretionary.” St. Tammany Par., 556 F.3d at 323.
On the other hand, “[t]he requirement of judgment or
choice is not satisfied,” and the discretionary function
exception is inapplicable, “if a federal statute, regulation, or policy specifically prescribes a course of action
for an employee to follow, because the employee has no
rightful option but to adhere to the directive.” Gaubert,
499 U.S. at 322 (citation and internal quotation marks
28a
omitted). In evaluating whether an agency’s action involved discretion, what matters is the nature of the
conduct, rather than the status of the actor. See id.
The second Gaubert prong winnows the field of discretionary acts that enjoy immunity from suit. Under
that prong, courts are to ask whether the judgment exercised by the agency “is of the kind that the discretionary function exception was designed to shield.” Id.
at 322–23 (internal quotation marks omitted). “Decisions that require choice are exempt from suit . . . only
if they are ‘susceptible to policy judgment’ and involve
an exercise of ‘political, social, [or] economic judgment.’” Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995)
(quoting Gaubert, 499 U.S. at 325).
With the Gaubert test in hand, the court turns to
whether FEMA’s promulgation of regulations constitutes an exercise of its discretionary function.
1. Whether FEMA’s Promulgation of Regulations is a Discretionary Act
In deciding whether the agency action challenged
here—the promulgation of regulations—is a discretionary act, the court begins with the text of the three
statutes that form the basis for Plaintiffs’ claims.
42 U.S.C. § 5174(j) requires FEMA to “prescribe rules and regulations to carry out [the
IHP], including criteria, standards, and procedures for determining eligibility for assistance.”
42 U.S.C. § 5151(a) instructs FEMA to “issue . . .
such regulations as may be necessary for the
guidance of personnel carrying out [the IHP and
any] . . . [s]uch regulations shall include provisions for insuring that the [IHP is carried out]
29a
in an equitable and impartial manner, without
discrimination.”
42 U.S.C. § 5189a(c) directs FEMA to “issue
rules which provide for the fair and impartial
consideration of appeals” from any “decision regarding eligibility for, from, or amount of [disaster] assistance.”
Thus, whether the discretionary function exception applies here depends on whether FEMA was exercising
its discretion when “prescrib[ing]” and “issu[ing]”
“rules” or “regulations,” as required by Congress.
Plaintiffs’ argument against applying the exception
proceeds as follows. Plaintiffs assert that FEMA’s
“regulations,” as codified in the Code of Federal Regulations (“CFR”), do not satisfy the mandatory directives contained in each of the above statutes. Compl.
¶¶ 82, 87, 90. For instance, Plaintiffs allege that the
regulations listed at 44 C.F.R. § 206.110–206.119 fall
short because the regulations (1) “do not state eligibility standards in sufficient detail to permit FEMA to
‘carry out’ [the] IHP”; (2) do not “insure” equitable and
impartial administration of the IHP because the regulations “are so vague”; and, (3) with respect to appeals,
are so devoid of substance that FEMA may rely on secret rules to reject appeals without disclosing the reasons for its determination to the applicant. Id. ¶¶ 82,
87, 90. Plaintiffs assert that these shortcomings constitute a “deliberate choice” by FEMA not to promulgate
the regulations that Congress demanded and that such
rulemaking choices are not the kinds of discretionary
acts that are immune from suit. Pls.’ Opp’n at 2–7. Put
succinctly, Plaintiffs argue that “FEMA has no discretion to violate federal law.” Id. at 2.
30a
Plaintiffs’ argument fails for two reasons, one based
on the text of the three statutes and the other based on
binding D.C. Circuit precedent. The court addresses
each reason in turn.
a. Plaintiffs’ Argument Contradicts the Text
of the Stafford Act
Plaintiffs’ argument is premised on a mischaracterization of the text of the Stafford Act. See Compl. ¶¶ 2,
27; Pls.’ Mot. at 7, 38, 42. Under the Act, Congress
granted FEMA the authority to issue both rules and
regulations, not regulations alone. 42 U.S.C. §§ 5121–
5206. In fact, only one of the three cited statutes, 42
U.S.C. § 5151(a), directs FEMA to administer the IHP
exclusively through “regulations” adopted in the CFR.
Section 5174(j), on the other hand, permits FEMA to
“prescribe rules and regulations to carry out” the
IHP, id. § 5174(j) (emphasis added), and Section
5189a(c) only requires FEMA to “issue rules” with respect to the appeals process, id. § 5189a(c) (emphasis
added). Furthermore, even section 5151(a), which uses
only the word “regulation,” merely directs FEMA to
publish such regulations “as may be necessary to
[carry out the IHP].” 42 U.S.C. § 5151(a) (emphasis
added). Accordingly, a plain reading of the statutes
does not support Plaintiffs’ assertion that the Stafford
Act requires FEMA to implement the IHP only
through published “regulations” in the CFR. Compl.
¶¶ 82, 87, 90.
The court cannot, as Plaintiffs suggest, brush aside
Congress’ decision to use the word “rules,” in addition
to the word “regulations,” or ascribe the same meaning
to both terms. See Transcript of May 25, 2017, Hearing,
ECF No. 13 [hereinafter Hr’g Tr.], at 8–9; cf. Deal v.
31a
United States, 508 U.S. 129, 134 (1993) (acknowledging
that “Congress sometimes uses slightly different language to convey the same message”) (internal quotation marks omitted). Ordinarily, “[w]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
Dean v. United States, 556 U.S. 568, 573 (2009) (citation and internal quotation marks omitted). That rule
takes on greater force where, as here, the statutes
were adopted at separate times. Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1444 (D.C. Cir. 1988)
(“Where the words of a later statute differ from those
of a previous one on the same or related subject, the
Congress must have intended them to have a different
meaning”); see also United States v. Wilson, 290 F.3d
347, 360 (D.C. Cir. 2002). Congress enacted (1) Section
5151(a) in 1974, see Pub. L. No. 93-288, § 308, 88 Stat.
143, 150 (1974) (formerly § 311); (2) Section 5189a(c) in
1988, see Pub. L. No. 100-707, tit. 1, sec. 106, § 423, 102
Stat. 4689, 4705 (1988); and (3) Section 5174(j) in 2000,
see Pub. L. No. 106-390, tit. 2, sec. 206(a), § 408, 114
Stat. 1552, 1566 (2000). That the statute with the narrowest directive, Section 5151(a), is also the first-intime statute suggests that Congress, in its amendments, intended to grant FEMA broader authority to
select its methods for designing the IHP, and not to
limit the agency to formal rulemaking alone. And affording FEMA increased flexibility in implementing
the IHP makes perfect sense. The awarding of disaster
relief depends on a host of variables, including the
availability of funds, the nature of the disaster, and the
32a
number of persons affected by the disaster. Thus, ascribing different meanings to the words “regulations”
and “rules,” and thereby granting FEMA wide berth in
how it carries out its statutory obligations, is consistent
with the Stafford Act’s purpose of “assur[ing] a prompt
and comprehensive federal response to a national disaster,” In re World Trade Center Disaster Site Litig.,
521 F.3d at 194. See Chapman v. Houston Welfare
Rights Organization, 441 U.S. 600, 608 (1979) (“As in
all cases of statutory construction, our task is to interpret the words of [the statute] in light of the purposes
Congress sought to serve.”).
The legislative history of Section 5174(j), which
broadly directs FEMA to “carry out” the IHP, lends
further support for the court’s interpretation of the
statutes at issue. Section 5174(j) first appeared in the
Disaster Relief Act of 1974. In that Act, Congress directed the President to “promulgate regulations” to
“carry out” the IHP. § 408(i), 114 Stat. 1570. Twentyfive years later, Congress amended that provision, as
part of the Disaster Mitigation Act of 2000, to read that
the President “shall prescribe rules and regulations to
carry out” the IHP. § 408(i), 114 Stat. 1570. Why would
Congress change decades-old statutory text from
“promulgate regulations” to “prescribe rules and regulations” unless it intended to alter the statute’s meaning? The natural reading of that textual change is that
Congress intended to grant FEMA greater flexibility
in “carry[ing] out” the IHP. Such expanded implementing authority is fatal to Plaintiffs’ argument:
FEMA simply does not need to set forth all eligibility
criteria through published regulations in the CFR. Rather, Congress afforded FEMA the discretion to rely
33a
on informally adopted “rules,” in addition to formal
rulemaking, to administer the program.
Plaintiffs also argue that the three statutes’ textual
differences are irrelevant because their claims actually
concern FEMA’s alleged failure to publish the policies
governing the IHP, regardless of whether a policy is
characterized as a “rule” or “regulation.” See Hr’g Tr.
at 10–11, 46–48. That argument, however, runs
aground on the shores of Plaintiffs’ Complaint. Counts
I through III each rest squarely on the theory that the
“regulations” FEMA published in the CFR, standing
alone, do not satisfy the directives of Congress. See
Compl. ¶ 82 (“FEMA’s IHP regulations . . . do not satisfy the requirement stated in [Section 5174(j) of the
Stafford Act]”); ¶ 83 (alleging that “the text of 44
C.F.R. § alone proves that FEMA must use unpublished rules to decide eligibility for disaster assistance”) (emphasis added); ¶ 87 (“On their face,
FEMA’s IHP regulations . . . do[] not ‘insure’ equitable
and impartial administration as required by [Section
5151(a) of the Stafford Act]”) (emphasis added); ¶ 90
(“On their face and as applied, FEMA’s IHP regulations . . . do not provide for the fair and impartial consideration of appeals”) (emphasis added). Indeed,
Plaintiffs even go so far as to offer a one-page draft
“regulation” entitled “The meaning of ‘disaster-related
damage’” for adoption and publication in the CFR at
“44 C.F.R. § 206.111.5,” to demonstrate the alleged
ease with which FEMA could “rectify most of the deficiencies in its current regulations.” Pls.’ Reply Supporting Pls.’ Partial Mot. for Summ. J., ECF No. 12, at
11, and Ex. A, ECF No. 12-1. Nowhere do Plaintiffs
contend, however, that FEMA’s “rules” and “regulations” in combination fail to execute the direction of
34a
Congress. The court will not permit Plaintiffs, now confronted with statutory text that does not support their
claims as drawn, to recast their suit as one seeking
mere publication of policies rather than affirmative
adoption of regulations.
Plaintiffs also rely on an alternative textual analysis, asserting that the plain text of the Stafford Act circumscribes the subject matter of FEMA’s rulemaking
to such an extent that the agency cannot claim its rulemaking is discretionary. With respect to Section
5174(j), Plaintiffs contend that the words “carry out”
and “including criteria, standards, and procedures”
mean Congress required FEMA to “state in regulation
all eligibility standards and procedures that FEMA
uses to carry out IHP.” Pls.’ Opp’n at 14; see also Pls.’
Mot. at 11–16 (arguing that “at minimum, § 5174(j) requires FEMA to publish regulations that rectify the
five deficiencies described above”). 3 Plaintiffs place
heavy emphasis on the words “carry out,” which they
contend means the “accomplishment of a completed
act,” and thus mandates FEMA to include all criteria
and standards that it uses to “decide[] who will get
what IHP assistance.” Id. at 9–13 (citing cases).
The court disagrees that, in the context of this statute, “carry out” means seeing an act through to completion. Congress could not have meant for FEMA to
“complete” or “conclude” the IHP when it elected to
use that phrase. Rather, the more natural interpretation of “carry out” in this context is that Congress
meant for FEMA to “put into execution” the IHP by
As discussed earlier, this argument independently fails because
the statute does not require FEMA to “carry out” the IHP only
through regulations, but through “rules and regulations.”
3
35a
way of rules and regulations. See Carry Out, MerriamWebster
Dictionary,
https://www.merriam-webster.com/dictionary/carry%20out (last visited June 26,
2017). Read this way, by instructing FEMA to put the
IHP into execution, Congress did not intend to require
the agency to publish in the CFR every standard or
piece of criteria that it might use to evaluate disaster
relief eligibility. Such a reading would make little
sense, particularly in the context of providing disaster
assistance, which, as noted, can depend on a number of
factors.
Plaintiffs’ reading of Section 5151(a) likewise does
not foreclose the agency’s exercise of discretion. Plaintiffs seize on the word “insure”—as in “insuring” nondiscrimination in disaster assistance—and assert that
it is a “muscular word” that means “to make certain especially by taking necessary measures and precautions.” Pls.’ Mot. at 17 (citing Merriam-Webster Dictionary). Plaintiffs focus on “insure,” however, ignores
another key phrase in Section 5151(a)—“as may be
necessary”—which affords the agency substantial discretion. Cf. Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 968–69 (2005) (affording
Chevron deference to rulemaking under statute that
authorized agency “to prescribe such rules and regulations as may be necessary”). Plaintiffs’ selective reading of the statute cannot convert a discretionary act
into a mandatory one. 4 Thus, the court rejects Plaintiffs’ narrow interpretation of the Stafford Act’s mandate and concludes that the statutory text confers upon
Plaintiffs do not make a serious argument that the text of Section 5189a(c) removes discretion from FEMA; rather, its argument
is that the regulations do not reasonably reflect what Congress mandated. See Pls.’ Mot. at 20–21.
4
36a
FEMA substantial discretion in how to implement the
IHP, thereby satisfying the first prong of Gaubert.
b. Plaintiffs’ Argument Fails Under D.C.
Circuit Precedent
Plaintiffs’ argument that FEMA lacks discretion
concerning how to implement the IHP also runs contrary to precedent in this Circuit. When faced with
broad statutory mandates similar to those at issue
here, the D.C. Circuit has held that “the agency [is] entitled to broad deference in picking the suitable level”
of specificity for its regulations. Ethyl Corp. v. E.P.A.,
306 F.3d 1144, 1149 (D.C. Cir. 2002). Here, each of the
three statutes command FEMA to institute rules, regulations, or both, on a general topic related to administering the IHP. Section 5174(j) concerns “criteria,
standards, and procedures for determining eligibility
for assistance” under the IHP. 42 U.S.C. § 5174(j). Section 5151(a) relates to “the processing of applications
. . . in an equitable and impartial manner.” Id. § 5151(a).
And section 5189a(c) addresses the “fair and impartial
consideration of appeals.” Id. § 5189a(c). Such broad
mandates do not significantly handcuff FEMA’s discretion when rulemaking, as none of the statutes supply any further direction as to required content or level
of specificity. The generality of these provisions means
that Congress left it to FEMA to decide how best to
satisfy the statutory mandates. Cf. Am. Trucking
Ass’n, 166 F.3d at 379 (observing that “[i]n a series of
cases we have explicitly accorded agencies very broad
deference in selecting the level of generality at which
they will articulate rules”). Such a broad grant of discretion easily satisfies the first prong of the Gaubert
37a
test—that the agency acted with the authority to make
a choice or judgment. 5
Plaintiffs, for their part, point to a series of D.C.
Circuit cases to support their view that FEMA lacks
discretion to determine the specificity of its regulations
under the Stafford Act. 6 See Pls.’ Mot. at 21–29. They
rely heavily on Ethyl Corp. v. E.P.A. in particular, asserting that “[t]he case at bar is indistinguishable from
Ethyl.” Id. at 25. Not so. In Ethyl, the court considered
whether the Environmental Protection Agency
(“EPA”) had complied with its obligations under the
Clean Air Act (“CAA”), which instructed the agency to,
“by regulation[,] establish methods and procedures for
making tests” designed to measure motor vehicle emissions. See Ethyl, 306 F.3d at 1148–49 (emphasis added).
The EPA asserted that it had satisfied its mandate,
even though it had not promulgated test methods of its
own, because the agency had instead “establishe[d] a
framework for automobile manufacturers to develop
their own tests.” Id. at 1146. The court disagreed, finding that the statute required the agency to actually issue regulations specifically governing emissions test
procedures—i.e., the agency did not have discretion to
outsource that responsibility to third-parties. Id. at
5
Plaintiffs cite several cases where they claim courts have rejected the argument that FEMA maintains rulemaking discretion
under the Stafford Act. See Pls’ Opp’n at 5 (citing cases). However,
those cases stand for the proposition that FEMA cannot violate the
Constitution under the guise of its discretionary function. Plaintiffs
do not advance constitutional claims in this case. Accordingly, Plaintiffs’ reliance on those cases proves unhelpful.
6
For ease of discussion, the court will address Plaintiffs’ reliance
on MST Express v. Dep’t of Transp., 108 F.3d 401 (D.C. Cir. 1997),
when discussing the substance of Plaintiffs’ APA claims.
38a
1148–50. Here, in sharp contrast, FEMA has not outsourced its administration of the IHP to any third
party. To the contrary, there is no dispute that FEMA
in fact issued rules and regulations designed to “carry
out” the IHP and its appeals process in a nondiscriminatory manner. Plaintiffs’ challenge therefore falls “on
the ‘too general’ rather than the ‘no regulation at all’
side of the line,” Cement Kiln Recycling Coal. v. EPA,
493 F.3d 207, 222 (D.C. Cir. 2007), and directly implicates FEMA’s discretion how to administer the IHP.
Public Citizen v. Nuclear Regulatory Commission is
inapposite for the same reason. The statute at issue in
that case, the Nuclear Waste Policy Act of 1982, required the agency to “establish” certain instructional
requirements for personnel training programs for civilian nuclear power plant licensees. 901 F.2d 147, 149
(D.C. Cir. 1990). The court found that agency had failed
to do so, instead permitting “case-by-case impositions
of requirements on particular licensees.” Id. at 158. No
similar abdication of implementation authority is present in this case.
Plaintiffs’ reliance on American Airlines, Inc. v.
Transportation Security Administration, 665 F.3d
170 (D.C. Cir. 2011), and Oceana, Inc. v. Locke, 670
F.3d 1238 (D.C. Cir. 2011), is unconvincing for similar
reasons. Both cases concerned circumstances in which
an agency reserved the option to deviate from regulations promulgated pursuant to a statutory mandate. In
Oceana, the D.C. Circuit held that the National Marine
Fisheries Service (“NMFS”) had violated its obligations under the Magnuson-Stevens Act—which required NMFS to “establish a standardized reporting
methodology to assess the amount and type” of fish
39a
caught but ultimately discarded (i.e., bycatch)—because the NMFS’s proposed reporting methodology
contained an exception that NMFS could trigger “in
any year in which external operational constraints
would prevent NMFS from fully implementing” the reporting regulations. Id. at 1239–41 (internal quotation
marks omitted). The court considered Ethyl and its
progeny in finding that, because the agency could not
identify any “meaningful limitation” on its ability to
“trigger” that exception at will, it had failed to carry
out its obligation to establish binding regulations to effectively monitor the amount of annual bycatch. Id. at
1241. In other words, the exception was “so vague as to
make the rule meaningless.” Id. at 1241–42. Similarly,
American Airlines relied on Oceana to hold the same
concerning a Transportation Security Agency (“TSA”)
decision to include a unilateral “case-by-case” exception to an airport security funding prioritization list
that it had created pursuant to requirements set out in
the Aviation and Transportation Security Act. 665 F.3d
at 176–77. The court again found that the agency’s exception swallowed the rule—TSA could not have fulfilled Congress’ mandate to promulgate binding regulations while simultaneously maintaining the unilateral
authority to deviate from those regulations whenever
it desired. Id. Here, in contrast, FEMA has not unilaterally excepted itself from administering the IHP under any circumstances: FEMA has explicitly adopted
the regulations that it uses to administer the IHP and
Plaintiffs have failed to identify an opt-out provision in
those regulations similar to those that ran afoul of the
congressional directives in Oceana and American Airlines.
40a
Thus, the cases on which Plaintiffs rely are distinguishable. At bottom, Plaintiffs’ cited cases stand for
the general propositions that an agency cannot: (1) ignore Congress’ explicit direction to regulate in favor of
some other preferred means of administering a program (Ethyl and Public Citizen), or (2) satisfy an explicit direction to regulate by issuing regulations that
the agency can nonetheless cast aside at will by relying
on an overly broad exception (Oceana and American
Airlines). In this case, by contrast, FEMA did exactly
what Congress required by creating rules and regulations to administer the IHP. Those rules and regulations do not contain any exception “so vague as to make
the rule meaningless.” Oceana, 670 F.3d at 1241–42. In
summary, the court finds that the authority granted to
FEMA under the Stafford Act satisfies the first prong
of the Gaubert test because Congress only prescribed
that FEMA create rules and regulations to administer
the IHP, leaving to FEMA the “choice” to determine
the scope and content of those rules and regulations.
2. Whether FEMA is Immune from Suit for Its
Discretionary Acts
Having decided that the Stafford Act vests discretion in FEMA to promulgate rules and regulations, the
second Gaubert inquiry—whether the challenged judgment is of the kind that the discretionary function exception was designed to shield—is easily resolved.
Gaubert itself provides the answer. There, the Supreme Court provided the following example of a discretionary agency action that is immune from suit:
Where Congress has delegated the authority
to an independent agency or to the Executive
Branch to implement the general provisions
41a
of a regulatory statute and to issue regulations to that end, there is no doubt that planning-level decisions establishing programs
are protected by the discretionary function
exception, as is the promulgation of regulations by which the agencies are to carry out
the programs.
Gaubert, 499 U.S. at 323 (emphasis added). Thus,
Gaubert leaves no doubt that FEMA’s promulgation of
the challenged regulations is the type of discretionary
agency action that Congress intended to shield from
review. Cf. St. Tammany Par., 556 F.3d at 320–322
(holding that the decision whether to engage in notice
and comment rulemaking, or to use a less formal
method, to adopt policy is a discretionary act that cannot be challenged under the APA); Rosas v. Brock, 826
F.2d 1004, 1008 (11th Cir. 1987) (same).
Accordingly, the court finds that it lacks subject
matter jurisdiction to review Plaintiffs’ claims under
the discretionary function exception of the Stafford
Act. Plaintiffs’ Complaint is therefore dismissed.
B. Whether FEMA’s IHP Regulations Are
Reasonable Interpretations of the Stafford
Act
Even if the court were to have jurisdiction over
Plaintiffs’ claims, FEMA’s IHP regulations nonetheless constitute reasonable interpretations of the Stafford Act and therefore Plaintiffs have failed to state a
claim. As previously noted, Plaintiffs’ claims implicate
the two-step formula set forth in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S.
at 842–44. Under Chevron’s first step, courts must determine whether Congress has “directly spoken to the
42a
precise question at issue.” Id. at 842. As discussed
above, Congress has not provided direct instruction to
FEMA concerning the content and specificity of its
IHP regulations, and so the court proceeds to Chevron’s second step: whether those regulations are
“based on a permissible construction of the [Stafford
Act].” Id. at 843. “[U]nder Chevron [step two] . . . the
fundamental question is not whether we think the
[agency]’s interpretation is correct, but whether the
[agency]’s interpretation of the Act is at least reasonable in light of any ambiguities in the statute.” District
of Columbia v. Dep’t of Labor, 819 F.3d 444, 449 (D.C.
Cir. 2016). “If the agency’s construction is reasonable,
[courts] defer.” Council for Urological Interests v.
Burwell, 790 F.3d 212, 219 (D.C. Cir. 2015) (citing
Chevron, 467 U.S. at 842–43). “[J]udicial deference is
at its highest in reviewing an agency’s choice among
competing policy considerations, including the choice .
. . of the level of generality at which it will promulgate
norms implementing a legislative mandate.” Metro.
Washington Airports Auth. Prof’l Firefighters Ass’n v.
United States, 959 F.2d 297, 300 (D.C. Cir. 1992) (internal citation omitted); see also Cement Kiln, 493 F.3d
at 221 (holding that courts must defer to agency interpretations of statutes when rulemaking “so long as [the
agency] establishes an identifiable standard governing” the subject matter Congress required).
For the reasons that follow, the court finds FEMA
reasonably interpreted the Stafford Act in promulgating each contested provision of the IHP regulations.
1. Count I - 42 U.S.C. § 5174(j)
The court finds FEMA’s interpretation of 42 U.S.C.
§ 5174(j) reasonable under Chevron. Plaintiffs contend
43a
that FEMA failed to satisfy the requirements of that
section because it failed to “[s]tate [a]ll of [i]ts [e]ligibility [r]equirements” in the IHP regulations. Pls.’
Opp’n at 14. However, as discussed, the Act does not
require such specificity. Moreover, Plaintiffs’ arguments run counter to the persuasive reasoning of the
Fifth Circuit’s recent decision in La Union Del Pueblo
Entero (LUPE) v. Federal Emergency Management
Agency, 608 F.3d 217, 221 (5th Cir. 2010), which held
that that FEMA’s IHP regulations comport with the
requirements of 42 U.S.C. § 5174(j) because they sufficiently “establish—though sometimes imprecisely—
criteria, standards, and procedures for determining eligibility for FEMA aid.” Id. at 221. In so holding, the
court explained that “although the C.F.R. materials do
not lay out the ‘criteria, standards, and procedures for
determining eligibility for assistance’ with as much
specificity as might be desired, we cannot conclude that
the regulations contravene Congress’s directive to issue eligibility regulations. The additional content provided by [44 C.F.R.] §§ 206.110–206.120 significantly
narrows the universe of potentially eligible disaster
victims.” Id. at 223. This court agrees with the Fifth
Circuit. Accordingly, FEMA’s interpretation of its obligations under § 5174(j) is reasonable under Chevron,
and, as a result, Plaintiffs fail to state a claim as to
Count I. See Cement Kiln, 493 F.3d at 221.
The Fifth Circuit’s reasoning in LUPE also undermines Plaintiffs’ reliance on MST Express v. Department of Transportation, 108 F.3d 401 (D.C. Cir. 1997).
Plaintiffs assert FEMA’s “regulations at issue here
feature . . . all [the] flaws that the D.C. Circuit held to
be dispositive in MST.” Pls.’ Mot at 24. The court does
not agree. At its core, the D.C. Circuit’s decision in
44a
MST Express turned on the substance of the plaintiffs’
APA claims that regulations promulgated by the Federal Highway Administration—which provided that vehicle safety controls were “adequate” if they are “appropriate for the size and type of operation of the particular motor carrier”—did not satisfy the Motor Carrier Safety Act’s directive that the agency promulgate
“a means of deciding whether the owners, operators,
and persons meet the safety fitness requirements.”
MST Express, 108 F.3d at 402–406. The Circuit found
that such an open-ended regulation did not constitute
a reasonable interpretation of the agency’s mandate to
publish “a means of deciding” safety fitness ratings in
the CFR. Id. at 406. Understood this way, MST Express is readily distinguishable because the regulations
in that case did not serve to “significantly narrow” the
statutory criteria and, thus, wholly failed to carry out
Congress’ mandate. LUPE, 608 F.3d at 223. Here, on
the other hand, FEMA has in fact provided sufficiently
specific IHP regulations to satisfy the Stafford Act’s
directive—as discussed in LUPE—and, accordingly,
the court does not agree with Plaintiffs that FEMA’s
regulations suffer from similar flaws to those identified
in MST Express.
2. Count II - 42 U.S.C. § 5151(a)
The court reaches the same conclusion regarding
FEMA’s interpretation of 42 U.S.C. § 5151(a). Again,
that section requires FEMA to “issue . . . such regulations as may be necessary for the guidance of personnel
carrying out [the IHP and any] . . . [s]uch regulations
shall include provisions for insuring that the [IHP is
carried out] in an equitable and impartial manner,
without discrimination.” 42 U.S.C. § 5151(a) (emphasis
45a
added). Relying on Gonzales v. Oregon, 546 U.S. 243
(2006), Plaintiffs assert that FEMA’s interpretation is
unreasonable because 44 C.F.R. § 206.11(b), “only repeats what is required by statute” and, thus, is nothing
more than a “parroting regulation” not entitled to deference. See Pls.’ Opp’n at 13–14. Gonzales, however,
concerned whether an agency should be afforded deference in interpreting its own regulations under Auer
v. Robbins, 519 U.S. 452 (1997), where such regulations
merely “parroted” the governing statute. Gonzales,
546 U.S. at 257. That question is not implicated in this
case. Plaintiffs are not challenging FEMA’s authority
to interpret its IHP regulations, but rather, the content
of those IHP regulations. Gonzales is thus irrelevant
to this case.
Further, Plaintiffs’ argument that FEMA has
merely parroted the text of the Act collapses upon further inspection. True, consistent with the text of
§ 5151(a), section 206.11(b) requires all FEMA personnel to “perform their work in an equitable and impartial manner, without discrimination on the grounds of
race, color, religion, nationality, sex, age, or economic
status.” 44 C.F.R. § 206.11(b). But that is not all that
section 206.11 commands. It also demands that “government bodies and other organizations shall provide a
written assurance of their intent to comply with regulations relating to nondiscrimination.” Id. § 206.11(c).
It further requires the agency to make available to a
broad spectrum of interested persons—“employees,
applicants, participants, beneficiaries, and other interested parties”—information as to how FEMA goes
about implementing its programs and activities in an
“equitable and impartial” manner. Id. § 206.11(d). And,
perhaps most critically, section 206.11 cross-references
46a
another part of FEMA’s regulations, titled “Nondiscrimination in FEMA-Assisted Programs,” 44 C.F.R.
§§ 7.1–7.16. The stated purpose of those regulations is
to give effect to Title VI of the Civil Rights Act of 1964,
“to the end that no person in the United States shall,
on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination under any
program or activity receiving Federal financial assistance from” FEMA. Id. The anti-discrimination regulations apply broadly to “any program for which Federal financial assistance is authorized under law administered by” FEMA, which would include the IHP. Id.
§ 7.4. The regulations enumerate specific forms of prohibited discrimination, id. § 7.5; require that applications contain assurances of non-discriminatory treatment, id. § 7.7; and authorize FEMA to conduct investigations to ensure compliance and to ferret out and
sanction non-compliance, id. §§ 7.11–7.14. Thus,
FEMA has done far more than regurgitate the statute
in insuring the administration of the IHP in an equitable and impartial manner, and the court “must defer to
[FEMA’s] reasonable interpretation . . . as to the degree of detail required.” See Cement Kiln, 493 F.3d at
218. Accordingly, the court finds that Plaintiffs also fail
to state a claim as to Count II.
3. Count III - 42 U.S.C. § 5189a(c)
Finally, FEMA has published regulations that govern appeals of disaster relief decisions. Though hardly
fulsome, 44 C.F.R. § 206.115 sets forth instructions and
procedures for appealing the denial of assistance determinations under the IHP. The fact that Plaintiffs
47a
desire a more fully fleshed-out set of published regulations does not make the level of specificity chosen by
FEMA unreasonable. See Cement Kiln, 493 F.3d at
221–222; Ethyl, 306 F.3d at 1149. Accordingly, the
court finds that Plaintiffs also fail to state a claim as to
Count III. 7
V. CONCLUSION
For the foregoing reasons, the court grants Defendants’ Motion to Dismiss and denies Plaintiffs’ Motion
for Partial Summary Judgment.
A separate Order accompanies this Memorandum
Opinion.
Dated: July 11, 2017
/s/
Amit Mehta
Amit P. Mehta
United States District Judge
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.
7
48a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________
Case No. 1:16-cv-01843 (APM)
DANIEL BARBOSA, ET AL.,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS .
__________
[Filed: Oct. 6, 2017]
__________
MEMORANDUM OPINION
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,
49a
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. 1 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,
2017 WL 2958606, at *12 n.7 (D.D.C. July 11, 2017).
Plaintiffs now assert that the court was wrong to dismiss Count IV on that basis, arguing that “Count IV is
fact-based and conceptually distinct from the legal issues decided by the Court in [its Memorandum Opinion], and cannot be dismissed for the same reasons that
this Court relied upon to dismiss Plaintiffs’ other
claims.” Pls.’ Mot. at 1. The court should have provided
the parties a more fulsome explanation for why it dismissed Count IV and now takes the opportunity to do
so.
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
Plaintiffs do not ask the court to reconsider its dismissal of
Counts I through III.
1
50a
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 noticeand-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, 2017
WL 2958606, at *5–10 (citing 499 U.S. 315, 322–23
(1991)). The court thus dismissed Counts I, II, and III,
for lack of subject matter jurisdiction. Id. at *10.
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, 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.
51a
§§ 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, 826 F.2d 1004,
1006 (11th Cir. 1987); St. Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307, 313, 326 n.13 (5th Cir.
2009). And, while the D.C. Circuit has not addressed
the Stafford Act’s discretionary function exception’s
application to APA challenges, it has held in an analogous context that the discretionary function exception
contained in the Federal Tort Claims Act precludes
tort claims alleging violations of the APA’s procedural
requirements. Jayvee Brand, Inc. v. United States, 721
F.2d 385, 387 (D.C. Cir. 1983). Applying those decisions
here, the court lacks subject matter jurisdiction as to
Count IV.
Both the Eleventh Circuit and the Fifth Circuit
have held that the Stafford Act’s discretionary function
52a
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 classaction suit challenging the definition of “unemployed
worker” that the agency 2 had used to evaluate his disaster relief claims. See Rosas, 826 F.2d at 1006–07. The
plaintiff alleged, among other things, that the agency
had wrongfully denied his claim because it had adopted
and applied its definition of “unemployed worker”
without subjecting the definition to notice-and-comment rulemaking. See id. at 1009. The agency responded that its decision to adopt a particular definition of “unemployed worker” was exempt from the
APA’s notice-and-comment requirement because it
was an interpretive, as opposed to substantive, rule.
See id. The Eleventh Circuit, like the district court, declined to reach the merits of the parties’ dispute—
whether the agency failed to adhere to the APA’s formal rulemaking requirements—because “the government’s determination of whether its definition of ‘unemployed worker’ is a substantive or interpretive rule
involves the same sort of discretion and implicates the
same policy considerations that exempt the decision [of
selecting the term’s definition] from judicial review.”
Id. The court explained that “if a discretionary decision,” i.e., the adoption of a definition, “is made without
following mandated procedures, it is an abuse of discretion and, as such, protected from judicial review.”
See id. at 1009–10. In other words, the court held that
the Stafford Act’s discretionary function exception
At the time of Rosas, the agency responsible for overseeing disaster relief was the Department of Labor, not FEMA. See Rosas, 826
F.2d at 1006.
2
53a
precluded review of the agency’s discretionary decision not to follow formal rulemaking procedures when
defining “unemployed worker.” The Eleventh Circuit,
therefore, affirmed dismissal of the claimant’s APA
challenge for lack of subject matter jurisdiction. The
Fifth Circuit reached a similar decision in St. Tammany Parish ex rel. Davis v. FEMA. There, the plaintiff challenged FEMA’s refusal to approve funding for
debris removal in the aftermath of Hurricane Katrina
and, as pertinent here, argued that “FEMA’s refusal to
approve funding constituted a substantive rule change
about which FEMA never provided the public with notice and an opportunity to comment.” 556 F.3d at 313.
Citing Rosas, the Fifth Circuit affirmed the district
court and held that the discretionary function exception barred review of the plaintiff’s claim that FEMA
had violated the APA’s notice-and-comment requirement. Id. at 326 n.13 (“Because § 5148 applies, it bars
any claim—whether alleged under the [Federal Tort
Claims Act] or APA.”). Taken together, Rosas and St.
Tammany Parish stand for the proposition that the
Stafford Act’s discretionary function exception forecloses claims challenging FEMA actions that implicate
both procedural and substantive considerations under
the APA.3
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
54a
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. 721 F.2d at 387. The plaintiffs maintained that
the Commission’s ban was unlawful because the agency
did not follow procedures set forth in the federal Food,
Drug, and Cosmetic Act, which required the Commission to provide notice of the proposed ban in the Federal Register and an opportunity for public comment.
See id. The Circuit held that the plaintiffs’ FTCA
claims—which it described as an “attack . . . on the procedures by which the . . . ban was formulated and
adopted”—were barred by the FTCA’s discretionary
function exception because, even if the Commission
failed to follow the procedures laid out in the statute,
that failure was “an abuse in the exercise of policy making, and hence an abuse of discretion shielded from liability” under the FTCA. Id. at 389.4 As this court
noted in its Memorandum Opinion, Congress used the
FTCA’s discretionary function exception in crafting
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, 721 F.2d at 391.
55a
the Stafford Act’s exception and, consequently, courts
routinely refer to FTCA jurisprudence when evaluating the Stafford Act’s discretionary function exception.
See Barbosa, 2017 WL 2958606, at *5 (collecting cases).
In fact, the Eleventh Circuit in Rosas relied on Jayvee
Brand in finding that the Stafford Act’s discretionary
function exception barred the plaintiffs’ APA claims in
that case. See Rosas, 826 F.2d at 1010. The Circuit’s
holding in Jayvee Brand therefore provides a strong
signal as to how the Circuit would apply the Stafford
Act’s discretionary function exception to an alleged violation of the APA’s publication requirements.
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
Rosas, 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 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
56a
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 t
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