Barbosa v. U.S. Dep't of Homeland SEC.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2018 Decided March 1, 2019

No. 17-5206

DANIEL BARBOSA, ET AL.,
APPELLANTS

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND
FEDERAL EMERGENCY MANAGEMENT AGENCY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01843)

Amanda Flug Davidoff argued the cause for appellants.
With her on the briefs were Adam R. Brebner, Jerome Wesevich,
and Edward Tuddenham.

Julie A. Murray and Scott L. Nelson were on the brief for
amicus curiae Public Citizen, Inc. in support of plaintiffs-
appellants.

Michael L. Foreman was on the brief for amici curiae
National Low Income Housing Coalition, et al. in support of
plaintiffs-appellants.

Mark B. Stern, Attorney, U.S. Department of Justice, argued
 2

the cause for appellees. With him on the brief were Alisa B.
Klein and Carleen M. Zubrzycki, Attorneys.

Before: KATSAS, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.

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

1
See 42 U.S.C. §§ 5121 et seq.
 3

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 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).
 4

* * *

The government has promulgated regulations pursuant to
the statutory mandates.2

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

2
We note that the regulations at times track the statutory
language. Presumably, the statutory command to regulate anticipates
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.
 5

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, 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

5
44 C.F.R. §§ 206.110 et seq.
 6

housing assistance (including “[s]tructural components of the
residence,” “[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 the component was functional before the declared event
and proof that the declared event caused the component to stop
 7

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 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.”
 8

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 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

6
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.
 9

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 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

7
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).
 10

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 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

8
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
 11

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. § 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,

cases here.
 12

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.

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

9
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).
 13

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.