https://www.americancityandcounty.com/wp-content/themes/acc_child/assets/images/logo/footer-logo.png
  • Home
  • Co-op Solutions
  • Commentaries
  • News
  • In-Depth
  • Multimedia
    • Back
    • Podcast
  • Resources
    • Back
    • Resources
    • Webinars
    • White Papers
    • Events
    • How to Contribute
    • Municipal Cost Index – Archive
    • Equipment Watch Page
    • American City & County Awards
  • Magazine
    • Back
    • Digital Editions
    • Reprints & Reuse
    • Advertise
  • About Us
    • Back
    • About Us
    • Contact Us
    • Privacy Statement
    • Terms of Service
American City and County
  • NEWSLETTER
  • Home
  • Co-op Solutions
  • Commentaries
  • News
  • In-Depth
  • Multimedia
    • Back
    • Podcasts
  • Resources
    • Back
    • Webinars
    • White Papers
    • Events
    • How to Contribute
    • American City & County Awards
    • Municipal Cost Index
    • Equipment Watch Page
  • Magazine
    • Back
    • Digital Editions
    • Reprints & Reuse
    • Subscribe to GovPro
    • Manage GovPro Subscription
    • Advertise
  • About Us
    • Back
    • About Us
    • Contact Us
    • Cookie Policy
    • Privacy Stament
    • Terms of Service
  • newsletter
  • Administration
  • Economy & Finance
  • Procurement
  • Public Safety
  • Public Works & Utilities
  • Smart Cities & Technology
acc.com

Commentaries


Commentary

New arbitration remedy when FEMA denies public assistance for disaster recovery

New arbitration remedy when FEMA denies public assistance for disaster recovery

  • Written by Pepper Allgood
  • 27th March 2019

Local governments now have an important new right of arbitration to help them resolve disputes over public assistance from the Federal Emergency Management Agency (FEMA). Cities, counties and other entities who need public assistance to recover from disasters may now assert their rights before a neutral arbitration board. Before, their only option, in most cases, had been to try to persuade FEMA to change its mind.

Recently, Congress passed, and on October 5, 2018, the President signed, H.R. 302, the “FAA Reauthorization Act of 2018.” The new law includes a section called the Disaster Recovery Reform Act of 2018 (“DRRA”). Section 1219 of the new law, included in the DRRA part of the bill, makes arbitration available to applicants for public assistance affected by disasters occurring after January 1, 2016.

Under the federal Stafford Act, when disasters strike, FEMA gives public assistance to state, territorial, tribal, and local governments, as well as certain private nonprofit organizations. Not infrequently, FEMA denies public assistance to applicants who believe they are eligible for such funding. The Stafford Act has historically provided an administrative appeal process by which applicants may challenge FEMA’s determinations. Because these administrative appeals involve FEMA’s internal review of its own decisions, applicants sometimes believe their appeals receive less than fair hearings. Now, the DRRA will provide an alternative, neutral forum via arbitration before the federal government’s Civilian Board of Contract Appeals (“CBCA”).

Congress has twice before provided arbitration, in limited contexts, to applicants who disagreed with FEMA. First, Section 601 of Public Law 111-5, the American Recovery and Reinvestment Act of 2009, let communities affected by Hurricanes Katrina and Rita pursue arbitration. The CBCA, as it will under the DRRA, serves as the tribunal for these Katrina/Rita arbitrations. The CBCA has resolved scores of disputes under this procedure. Frequently, the CBCA has ruled for the applicants.

Congress later passed the Sandy Recovery Improvement Act of 2013. That Act required that FEMA create a dispute resolution program, to include arbitration. The Sandy Pilot Program existed for three years, 2013-2015. However, no applicant ever requested arbitration under that procedure.

Key differences have made the Katrina/Rita procedure useful, but led applicants to shun the Sandy program. For example, under the Katrina/Rita procedure, the CBCA decides disputes de novo, giving no consideration to FEMA’s determinations. The Sandy procedure, although labeled “arbitration,” really only offered a limited review of FEMA’s decisions. It would have upheld FEMA’s rulings unless they were found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

The two procedures had other significant differences. The Katrina/Rita procedure lets applicants introduce new evidence not previously presented to FEMA, including live testimony, and it provides a live hearing before the CBCA. The Sandy procedure limited review to an administrative record compiled by FEMA. The CBCA, which hears the Katrina/Rita disputes, has expertise in government contract disputes, including construction and infrastructure issues like the ones that arise in the disaster recovery context. The Sandy legislation allocated review to administrative law judges provided by the United States Coast Guard.

The new DRRA adopts the beneficial features of the Katrina/Rita arbitrations. The new law specifies that the CBCA will hear and decide the arbitrations, and it mandates the use of “the arbitration process established under the authority granted under section 601 of Public Law 111–5”– i.e., the Katrina/Rita procedure.

Not all disputes will qualify for the new DRRA procedure. For arbitration, a dispute must exceed $500,000, unless it involves an applicant in a “rural area.” Rural applicants only need $100,000 at stake. “Rural area” means “an area with a population of less than 200,000 outside an urbanized area.”

The new DRRA procedure does require that an applicant first appeal a FEMA determination using FEMA’s administrative appeal process. However, if FEMA takes longer than 180 days to decide the appeal, the applicant may proceed directly to arbitration.

Local governments often assume that they must simply accept FEMA’s funding decisions, even if they disagree with them. Now, applicants get to present their positions to a neutral and knowledgeable tribunal. Based on the Katrina/Rita arbitrations, this will be an option worth considering.

 

Davis B. “Pepper” Allgood is an attorney in Baton Rouge, La,, who has helped resolve complex business disputes, contracting issues, and regulatory problems for over 35 years. Pepper has handled administrative appeals before the Federal Emergency Management Agency after Hurricanes Katrina, Rita, Gustav, and Sandy, and he has successfully arbitrated against FEMA before the Civilian Board of Contract Appeals. He may be reached at pepper.allgood@outlook.com and 225.936.0405.

Tags: Administration Public Safety Commentaries Administration Public Safety Commentary

Related


  • How Philadelphia is aiming for zero waste
    The city of Philadelphia has long collected data on city properties’ waste generation and leveraged it to improve waste management, but now it’s honing in on the commercial sector too, realizing this will be crucial to hitting Philly’s zero waste targets. Today it runs a voluntary program where both municipal and commercial operations do detailed […]
  • Florida county announces successful test of Motorola Solutions’ cloud-based P25 core technology
    A Florida county recently announced the completion of a successful test of Motorola Solutions’ CirrusCentral Core, the cloud-based secondary core for ASTRO 25 P25 systems that is designed to provide redundant reliability to the land-mobile-radio (LMR) network without the costs associated with a physical secondary core site. In Sumter County, Fla., the absence of a […]
  • How the City of Fullerton navigated adding candidates to ballots remotely
    This time last year, we were all looking forward to 2020: the start of a new decade and big elections (federally and locally) were just a few of the things we were excited about as we closed out the year. Little did we know, the beginning of the end of “normal” would happen two month […]
  • D.C. police begin identifying Capitol rioters
    Washington, D.C.’s Metropolitan Police Department (MPD) is working with the Federal Bureau of Investigation (FBI) to identify the supporters of President Donald Trump who stormed the U.S. Capitol on Jan. 6. “MPD seeks assistance in identifying persons of interest responsible for Unlawful Entry offenses that occurred yesterday on US Capitol Grounds, 100 block of 1st […]

Leave a comment Cancel reply

-or-

Log in with your American City and County account

Alternatively, post a comment by completing the form below:

Your email address will not be published. Required fields are marked *

Related Content

  • In challenging year, working with public safety to move FirstNet forward
  • Shared governance: How pandemic partnerships can lead to progress and offer promise
  • Will digital transformation of city procurement hold up beyond the pandemic?
  • Minneapolis cuts millions from police budget

Twitter


AmerCityCounty

The latest episode The Young Leaders Podcast focuses on Cyril Jefferson. Cyril is the youngest African American to… twitter.com/i/web/status/1…

27th October 2020
AmerCityCounty

Hillsboro, Oregon is pioneering a new #renewableenergy generation technology through a partnership with… twitter.com/i/web/status/1…

27th October 2020
AmerCityCounty

The impact of the #COVID19 pandemic on #telework was swift and profound. Now, the big question is whether – and to… twitter.com/i/web/status/1…

26th October 2020
AmerCityCounty

Get ready for the can't-miss webinar on how to kickstart your efficiency improvement plan with Luke Anderson of… twitter.com/i/web/status/1…

26th October 2020
AmerCityCounty

Among all states headed into the 2020 general election, which ones have voting populations that are the most demogr… twitter.com/i/web/status/1…

26th October 2020
AmerCityCounty

We want to hear from you! Share your thoughts in our readership survey to help us shape future content so that we c… twitter.com/i/web/status/1…

23rd October 2020
AmerCityCounty

See how cities different approaches to distribute masks in their communities >> spr.ly/6010GAPLa

23rd October 2020
AmerCityCounty

While #facialrecognition is a powerful tool that can improve law enforcement efficiency, that doesn’t necessarily t… twitter.com/i/web/status/1…

23rd October 2020

Newsletters

Sign up for American City & County’s newsletters to receive regular news and information updates about local governments.

Resale Insights Dashboard

The Resale Insights Dashboard provides model-level data for the entire used equipment market to help you save time and money.

Municipal Cost Index

Updated monthly since 1978, our exclusive Municipal Cost Index shows the effects of inflation on the cost of providing municipal services

Media Kit and Advertising

Want to reach our digital audience? Learn more here.

DISCOVER MORE FROM INFORMA TECH

  • IWCE’s Urgent Communications
  • IWCE Expo

WORKING WITH US

  • About Us
  • Contact Us

FOLLOW American City and County ON SOCIAL

  • Privacy
  • CCPA: “Do Not Sell My Data”
  • Cookies Policy
  • Terms
Copyright © 2021 Informa PLC. Informa PLC is registered in England and Wales with company number 8860726 whose registered and Head office is 5 Howick Place, London, SW1P 1WG.
This website uses cookies, including third party ones, to allow for analysis of how people use our website in order to improve your experience and our services. By continuing to use our website, you agree to the use of such cookies. Click here for more information on our Cookie Policy and Privacy Policy.
X