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The Applicants fight for their rights
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LA UNION DEL PUEBLO ENTERO, INC.,
FRANCISCA ADAME, ALEJANDRO
ALVARADO, ELIZABETH ALVARADO,
MANUEL BENAVIDEZ, MARIA GALARDO
JOSE GONZALES, AGUSTINA IGLESIAS,
NOE JIMENEZ, VERONICA JIMENEZ,
ERNESTO LOPEZ, NORM
A LOPEZ,
FRANCISCA PEREZ, ROSA ELIA § Civil Action No.
VILLARREAL, and CRUZ ALEJANDRO
Plaintiffs, § 1:08-cv-__________
v. Disaster Victims sue FEMA
FEDERAL EMERGENCY MANAGEMENT
AGENCY (FEMA),
Defendant.
COMPLAINT FOR INJUNCTIVE RELIEF
1. After Hurricane Dolly hit the South Texas coast on July 23, 2008, Defendant Federal Emergency Management Agency (FEMA) denied roughly half of all housing repair applications in the
2 publishing them. Plaintiffs therefore seek injunctive relief to minimize ongoing irreparable harm to their families in the form of health hazards, displacement, and destruction of their property.
PARTIES
2. Plaintiff La Union del Pueblo Entero (LUPE) is a nonprofit membership organization comprised largely of farm workers whose primary residences are in
3. The individual Plaintiffs reside in Cameron and
4. Defendant Federal Emergency Management Agency (FEMA) is an agency of the United States Department of Homeland Security, a cabinet department of the United States Government.
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Congress charges FEMA with providing disaster relief to survivors under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq.
JURISDICTION
5. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
VENUE
6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(2) because a substantial part of the events or omissions at issue occurred in this district.
FACTS
A. Statutory and Regulatory Background
7. Congress allows each eligible family up to $28,800 in total disaster relief services, including home repairs. 42 U.S.C. § 5174(c)(2) and (h).
8. Means testing of home repair assistance is forbidden except as to private insurance, so it is available to families regardless of their income or assets.
9. Congress requires FEMA to “prescribe rules and regulations to carry out [housing repair assistance under 42 U.S.C. § 5174(c)(2)], including criteria, standards, and procedures for determining eligibility for assistance.”
10. Congress also requires FEMA to issue regulations to “insur[e] that the distribution of [housing repair] assistance [is] accomplished in an equitable and impartial manner, without discrimination on the grounds of … economic status.” 42 U.S.C. § 5151(a).
11. FEMA attempted to comply with §§ 5151(a) and 5174(j) by adopting regulations that only repeat the language of 42 U.S.C. § 5174(c)(2). See 44 C.F.R. § 206.117(b)(2) and (c).
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B. Absence of Ascertainable Standards for Housing Assistance
12. FEMA’s various statements of the legal standards that it applies to decide housing repair applications are so vague that they are not consistently understood or applied by applicants, inspectors, local officials, FEMA contractors, or even FEMA officials themselves.
13. FEMA states that housing repair assistance is available to “insure the safety or health of the occupant” without stating what immediacy or magnitude of risk qualifies a repair for coverage, so that FEMA may choose to repair only items that pose an immediate or severe threat, or it may choose to repair anything that bears a conceivable relationship to health and safety. 44 C.F.R. § 206.117(b)(2); id. at § 206.117(c).
14. FEMA also states that housing repair assistance is available to “make the residence functional,” 44 C.F.R. § 206.117(b)(2)(ii), and defines “functional” so broadly as to approach meaninglessness: “an item or home capable of being used for its intended purpose.”
15. FEMA writes the following to applicants for housing repair assistance: “By regulation, the FEMA Individuals and Households Program (IHP) can address only your emergency repairs and needs. This program is not intended to fully restore your property to pre-disaster condition.”
16. FEMA regulations allow assistance to repair homes up to minimal building codes, even if this improves homes beyond their pre-disaster condition. 44 C.F.R. § 206.113(b)(5). But FEMA never says if, how, or when it applies this regulation.
17. Unlike FEMA, the U.S. Department of Housing and Urban Development has shown that ascertainable housing safety standards can be produced in regulations. See 24 C.F.R. § 982.401.
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18. Unlike FEMA, the U.S. Department of Agriculture has shown that ascertainable housing safety standards can be produced in regulations. See 7 C.F.R. § 3560.103.
C. Hurricane Dolly---Disaster No. 1780
19. Hurricane Dolly hit the
20. Disaster No. 1780 covers the
21. FEMA admits that its home repair denial rate is unusually high for Hurricane Dolly.
22. A FEMA official explained the high denial rate as follows: “A lot of the homes built were built from second hand materials. So the damage was, in most cases, caused from the faulty building of the house, and not the storm.”
23. FEMA collects, maintains, and uses information concerning a category of home repair applications that FEMA labels “deferred maintenance,” but publicly available legal standards do not mention “deferred maintenance” or explain how FEMA ascertains this information or uses it in its housing repair assistance decisions.
24. FEMA has applied unascertainable legal standards to deny housing repair assistance to somewhere between ten and fifteen thousand low-income families in the Rio Grande Valley since Hurricane Dolly struck, roughly half of all applicants.
25. In response to a written request from Plaintiffs’ counsel, FEMA has not provided or agreed to discuss its legal standards for deciding home repair applications.
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26. Absence of ascertainable FEMA standards for equitable and impartial distribution of housing repair assistance, as required by 42 U.S.C. § 5151(a), produces the following consequences:
a. FEMA makes arbitrary, subjective decisions about who gets housing repair assistance, and how much assistance is provided in each case;
b. FEMA housing damage inspectors do not use consistent methods to gather the facts upon which its housing repair assistance decisions are based; and
c. applicants for housing repair assistance are not provided sufficient factual or legal information to determine whether to undertake the effort necessary to appeal FEMA’s denial of assistance.
D. Individual Plaintiffs
27. The individual Plaintiffs suffered damage to their homes from Hurricane Dolly, applied to FEMA for home repair assistance, and were denied this assistance without being told what facts and legal standard FEMA relied upon to deny this assistance.
28. FEMA sent the individual Plaintiffs a form letter denying their applications for housing repair assistance. Quoted below is the complete and only explanation that FEMA provides for its denial of home repair assistance:
We recognize how difficult a time this is for you and your family and we understand that many people need help following a disaster. We are committed to providing you any help we can, including important information to begin your recovery.
The Federal Emergency management Agency (FEMA) and State of
CATEGORIES DETERMINATION
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Housing Assistance IID- Ineligible - Insufficient Damage
================ ===========
Total Grant Amount: $0.00
IID - Ineligible - Insufficient Damage
Based on your FEMA inspection, we have determined that the disaster has not caused your house to be unsafe to live in. This determination was based solely on the damage to your home that are related to this disaster.
Although the disaster may have caused some minor damage, it is reasonable to expect you or your landlord to make these repairs. At this time you are not eligible for FEMA assistance.
If you do not agree with our decision, you have the right to appeal. Please send us documents such as a statement from local officials, contractor estimates, etc. to show that the damage to your house was caused by the disaster and has caused unsafe or unlivable conditions.
a. Francisca Adame’s roof leaks and there is mold growing on her ceiling and walls, which will probably cost around $1500 to repair or replace, but she was denied any housing assistance benefits due to insufficient damage.
29. Plaintiff Francisca Adame, age 74, lives alone in
30. Ms. Adame lives in extreme poverty. Her annual income is only $6,756, comprised of social security disability benefits and Supplemental Security Income (SSI).
31. Hurricane Dolly damaged Ms. Adame’s roof, loosening shingles and blowing some off entirely. As a result, the roof leaks when it rains. Ms. Adame tries to prevent damage where she can, putting out buckets to collect the water that leaks through. However, portions of the ceiling are now rotting and mold has developed on some interior walls.
32. She has been advised that repairs will cost close to $1500. Ms. Adame does not have insurance or any other means to make the repairs.
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33. A FEMA inspector came to Ms. Adame’s home around August 8, 2008. He was unable to communicate directly with Ms. Adame because he did not speak Spanish. Ms. Adame’s son acted as a translator. The inspector remained on the ground when he took photographs of the property even though Ms. Adame told the inspector she did not think it was possible for him to adequately inspect the damaged roof from the ground.
34. FEMA sent Ms. Adame a letter denying housing assistance and other assistance on August 12, 2008, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
35. On October 1, 2008, Ms. Adame appealed the denial of benefits and requested a second inspection of her home.
36. Although she would like to obtain a written estimate of the repair costs in order to include that with a FEMA appeal, Ms. Adame cannot afford to pay for such an estimate. A contractor told her orally that he would charge $600 for labor, but this free estimate did not include the cost of materials.
37. Ms. Adame has not received any written decision following her October 1, 2008 appeal.
38. On November 3, 2008, a TRLA advocate called FEMA about the appeal. A FEMA representative informed Ms. Adame’s advocate that assistance had been denied because the damages to Ms. Adame’s pre-disaster home were not caused by the disaster. Rather, FEMA claims the damages resulted from a lack of maintenance prior to the disaster. The FEMA representative advised Ms. Adame’s advocate that Ms. Adame would need to submit a new appeal if she wished to challenge FEMA’s decision that the damages were due to lack of maintenance.
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b. Alejandro Alvarado and Elizabeth Alvarado must repair or replace a leaking roof, cracked walls and ceilings, a flooded and uninhabitable bedroom, and molding carpet, but they were denied housing repair assistance due to “insufficient damage.”
39. Plaintiff Alejandro Alvarado has but one home, where he has lived for 38 years with his family. The home is located in Lozano, Cameron County, Texas.
40. The Alvarados live in extreme poverty, with an annual income of about $20,000 to support a household of five, including Alejandro’s wife Herminia (age 57), his daughter Elizabeth (age 31, who is also a Plaintiff because she originally applied for FEMA repair assistance) and Elizabeth’s two children, ages 14 and 2.
41. Elizabeth and her children have lived in the Alvarado home for their entire lives.
42. Hurricane Dolly caused structural and roofing damage to the Alvarados’ home. Dolly’s winds damaged the roof, blowing off shingles and boards creating holes in the roof and in the sides of the house through which water enters. Dolly also shook the house and caused large cracks to appear in the walls and ceiling. Water began to stream down the interior walls during Hurricane Dolly, and one of the house’s two bedrooms was flooded. Large leaks remain throughout the house whenever it rains. Pungent mold continues to grow in the house with rain and heat. The Alvarados fear for the health of their family because of the mold. To this day the mold remains in the carpet of the home.
43. A contractor estimated that it would cost $3,300 just to repair the Alvarados’ roof.
44. The Alvarados do not have insurance or any other means to make the repairs.
45. The Alvarados applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
46. FEMA sent an inspector to the Alvarados’ home, who listened to the Alvarados’ description of the damage caused by Dolly.
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47. FEMA sent the Alvarados a letter denying home repair assistance on August 12, 2008, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
48. The Alvarados appealed and provided a contractor statement. As far as they know, their appeal remains pending at this time.
C. Manuel Benavidez’s roof leaked, pouring water into his kitchen, living room, dining room and laundry room, but he was denied any housing assistance benefits due to “insufficient damage.”
49. Manuel Benavidez, 67, and his wife, 70, have lived for about 30 years in El Charro, an informal subdivision or “colonia” located near
50. Mr. Benavidez and his wife live in extreme poverty. Mr. Benavidez receives Social Security benefits of about $590 a month. His wife receives Social Security benefits of about $374 a month. They also receive Food Stamps in the amount of about $34 a month.
51. When Hurricane Dolly struck the
52. Ever since the hurricane, water has come into the house when it rains through the leaks caused when the roof buckled in Hurricane Dolly.
53. Also, ever since the hurricane, insects enter the house through the places where Hurricane Dolly caused the house to leak. Mr. Benavidez has been spraying insecticide on the pests but this does not stop them from coming. He did not have this infestation before Dolly.
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54. Mr. Benavidez does not have any insurance to cover the repairs he needs to make due to the damage caused by Hurricane Dolly, or any other means to make the repairs that are needed.
55. On or about August 6, 2008 Mr. Benavidez applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
56. FEMA sent an inspector to Mr. Benavidez’s house to inspect the damage. Mr. Benavidez told the inspector that the damage was to the roof, and offered the inspector a ladder to go up and look at the roof. The inspector declined to go up on the ladder and look at the damaged roof. She told Mr. Benavidez that she didn’t need to do that, that her camera “could do miracles” and she just took pictures from inside the house and at ground level. She did not take pictures of the part of the roof that was seriously damaged by the hurricane. She only took pictures of the areas that were not seriously damaged.
57. On or about August 13, FEMA sent Mr. Benavidez a letter denying housing assistance, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
58. In September 2008, Mr. Benavidez submitted an appeal to FEMA, together with a contractor’s estimate regarding the damage to the house and the estimated cost to repair it.
59. On or about November 3, 2008, a representative from Texas RioGrande Legal Aid, Inc. called FEMA on Mr. Benavidez’s behalf, and spoke to a FEMA representative. The representative stated that on October 15, 2008, Mr. Benavidez’s appeal was denied, due to “deferred maintenance.”
60. On or about November 11, 2008, FEMA sent Mr. Benavidez a letter denying his appeal and denying his request for repair assistance. Quoted below is the complete and only
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explanation that FEMA provided for its denial of Mr. Benavidez’s appeal for home repair assistance:
You recently appealed one of FEMA’s decisions regarding your application for disaster assistance. We have thoroughly reviewed your case including all of the new information and documents you provided. Our decision(s) about your appeal is listed below.
CATEGORIES DETERMINATION
Home Repair IID- Ineligible - Insufficient Damage
================ ===========
Total Grant Amount: $0.00
IID - Ineligible - Insufficient Damage
In a previous letter, we explained that you were not eligible for
FEMA housing assistance because when FEMA inspected your
home it was determined that the disaster had not caused your home
to be unsafe to live in. This determination was based solely on the
damage to your home that is related to this disaster. We explained
that although the disaster may have caused some minor damage, it
was reasonable to expect you or your landlord to make these
repairs. We described the documents that you could submit to us to
show that the damage to your home was caused by the disaster and
has caused unsafe or unlivable conditions.
We have reviewed your appeal and any additional documents that
you may have provided, along with the FEMA inspection(s) on
your home. We have determined that our initial decision was
correct that you did not suffer disaster related damage that made it
unsafe for you to live in your home.
61. Mr. Benavidez seeks a ruling on whether FEMA fairly considered his application for housing repair assistance to minimize the deterioration of his home and to protect himself and his wife from harm.
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e. Maria Gallardo’s roof lost shingles, destroying her daughter’s bedroom and causing water to stream into the home and mold to grow on the sheetrock and carpet, but she was denied housing repair assistance due to “insufficient damage.”
62. Plaintiff Maria Gallardo has but one home, located in
63. The Gallardos live in extreme poverty, with an annual income of about $7,800. Rafael suffered a stroke and has partial paralysis on one side of his body and impaired vision as a result.
64. During Hurricane Dolly, the roof of the Gallardos’ home was damaged. Shingles were torn off the roof by the wind, causing the roof to leak. The sheetrock in the ceiling and walls was soaked. The carpet got wet, and has begun rotting and growing mold and mildew. The bedroom where Belinda lived with her children was destroyed. Whenever it rains, water streams down the interior walls. There is a pungent odor of mold and mildew in the home.
65. The Gallardos do not have insurance or any other means to make the repairs.
66. The Gallardos applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
67. FEMA sent an inspector to the Gallardos’ home. The inspector did not speak Spanish, and Ms. Gallardo does not speak English, so Ms. Gallardo’s daughter Belinda translated the conversation. The inspector told Ms. Gallardo, as translated by Belinda, that the home was unsafe to continue to live in.
68. On or about September 2, FEMA sent Ms. Gallardo a letter denying housing assistance, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
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69. The Gallardos appealed FEMA’s decision on September 24, 2008. Ms. Gallardo appealed FEMA’s decision because of the statements the FEMA inspector made about her home being unsafe to live in and the reason listed in her denial letter from FEMA are a contradiction. Ms. Gallardo provided FEMA a contactor estimate for repairs included in the appeal.
70. Upon receiving FEMA’s denial letter for housing assistance, Belinda and her children were forced to relocate to
71. According to the contractor estimate Ms. Gallardo obtained, it will cost approximately $5,910.00 to make the necessary repairs to the Gallardo’s home.
72. On October 18, 2008, FEMA sent Ms. Gallardo a letter denying her appeal and denying her request for repair assistance. Quoted below is the complete and only explanation that FEMA provided for its denial of Ms. Gallardo’s appeal for home repair assistance:
You recently appealed one of FEMA’s decisions regarding your application for disaster assistance. We have thoroughly reviewed your case including all of the new information and documents you provided. Our decision(s) about your appeal is listed below.
CATEGORIES DETERMINATION
Home Repair IID- Ineligible - Insufficient Damage
================ ===========
Total Grant Amount: $0.00
IID - Ineligible - Insufficient Damage
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In a previous letter, we explained that you were not eligible for
FEMA housing assistance because when FEMA inspected your
home it was determined that the disaster had not caused your home
to be unsafe to live in. This determination was based solely on the
damage to your home that is related to this disaster. We explained
that although the disaster may have caused some minor damage, it
was reasonable to expect you or your landlord to make these
repairs. We described the documents that you could submit to us to
show that the damage to your home was caused by the disaster and
has caused unsafe or unlivable conditions.
We have reviewed your appeal and any additional documents that
you may have provided, along with the FEMA inspection(s) on
your home. We have determined that our initial decision was
correct that you did not suffer disaster related damage that made it
unsafe for you to live in your home.
73. Despite FEMA’s denial of her appeal, Ms. Gallardo agrees with the FEMA inspector’s assessment that her home is significantly damaged and is unsafe to live in. She is concerned that she and her family will be sickened by the rotting ceiling, walls, and carpeting in their home, which will likely get worse as the roof continues to leak.
f. Jose Gonzales was denied any housing assistance benefits to repair over $7800.00 in damage to his recently refurbished, disability-accessible home, due to “insufficient damage.”
74. Plaintiff Jose Gonzales’s only home is located in
75. Mr. Gonzales is 50 years old and is quadriplegic. He and his wife Marcelina struggle to meet their needs using their annual food stamp allotment of $756 and the $7,644 of supplemental security income that Mr. Gonzales receives annually as a result of his total disability.
76. Prior to Hurricane Dolly, Mr. Gonzales had received assistance from a non-profit agency for various modifications that made his home more accommodating to a person with a wheelchair. Those modifications included a ramp, increasing the size of the bathroom, and
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widening of some of the home’s doors. The agency that assisted Mr. Gonzales with these modifications provided them for free, because he could not afford to pay for them.
77. Hurricane Dolly caused extensive structural and roofing damage to the Gonzales home. Dolly’s winds blew shingles off three quarters of his roof and caused it to warp. The roof then leaked, causing damage to some interior walls of the home interior walls of the home and the growth of mildew and mold.
78. A licensed contractor has estimated that it will cost $7,829.81 to repair the disaster-related damage.
79. The Gonzales family does not have any insurance to cover the repairs, or other means to make the repairs.
80. Mr. Gonzales applied for FEMA home repair assistance under 42 U.S.C. § 5174(c) (2).
81. FEMA sent an inspector to the Gonzales home. The inspector took pictures of the home and told Mr. Gonzales that he should await a decision by FEMA.
82. FEMA sent Mr. Gonzales a letter denying home repair assistance on August 5, 2008.
83. Mr. Gonzales went to the
84. Mr. Gonzales received a form letter with the identical language quoted in Paragraph 28 above as FEMA’s only written explanation for his denial.
85. Mr. Gonzales submitted appeals on August 21, 2008, and on September 5, 2008, and provided a contractor statement.
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86. FEMA denied Mr. Gonzales’s appeals on October 14, 2008.
87. Quoted below is the complete and only explanation that FEMA provided for this second denial of home repair assistance:
We have thoroughly reviewed your case including all of the new information and documents you provided. Our decision(s) about your appeal is listed below:
CATEGORIES DETERMINATION
Housing Assistance INO- Ineligible - Other
============== ==================
Total Grant Amount: $0.00
Ineligible- Additional Repair Assistance
We have reviewed your appeal for additional Home Repair and any documents you may have provided, along with the FEMA inspection(s) of your home. We have determined that the previous amount of assistance we provided was correct. As a result, your appeal is not approved and you are not eligible for additional FEMA assistance of this type.
This decision only applies to your appeal for FEMA assistance of this type. Your request for any other form of assistance is considered separately.
88. Mr. Gonzales claims that FEMA has violated his statutory right to procedures that comply with 42 U.S.C. § 5151(a), and seeks a ruling on this issue to ensure that his claim for housing repair assistance is resolved fairly, and as promptly as possible to minimize threats to his shelter and safety.
g. Agustina Iglesias’s damaged roof and sheetrock have made her daughter sick, but she was sent an unintelligible demand for documentation of her damages and has been denied housing assistance benefits.
89. Plaintiff Agustina Iglesias’s home is located in
90. Ms. Iglesias, 44, is a single mother and the head of a household that includes five of her children, ages 18, 17, 15, 13, and 1.
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91. Ms. Iglesias supports a family of six on approximately $20,000 annually. She is a temporary worker and will take any job she can find to pay her bills. She has worked as a health care provider and in packaging frozen food. She currently is working as a roofer’s assistant.
92. Hurricane Dolly caused extensive damages to Ms. Iglesias’ home. Shingles came off the roof and water flowed in through the ceiling, causing sheetrock to break off the ceiling throughout the house. Additionally, at least one wall of her home has fallen down.
93. Ms. Iglesias cannot afford to fix her home and does not have any insurance to cover the necessary repairs.
94. Ms. Iglesias and her five children have no other home to live in, nor any friends or relatives with whom they can stay, and are forced to remain in their damaged house. One of Ms. Iglesias’s daughters suffers from severe allergies, which have been aggravated because of the condition of the home. Her eyes are constantly watery and she is frequently sent home from school because of the severity of her reactions.
95. Ms. Iglesias applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
96. On August 19, 2008, FEMA sent Ms. Iglesias an award letter that did not address her request for home repair assistance and awarded her only $406.63 for damaged personal property.
97. Subsequently, Ms. Iglesias submitted documentation to prove that she owned her home, in an effort to obtain home repair assistance.
98. On October 24, 2008, FEMA sent Ms. Iglesias a letter requesting additional documentation to support her request for home repair assistance. FEMA’s request for documentation was incomplete and confusing. Quoted below is the language requesting additional documentation:
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This letter confirms that we have received your correspondence requesting an appeal of our decision in your application for Housing Assistance from the Federal Emergency Management Agency (FEMA). In order to evaluate your situation, we need additional documentation. …
ONE ITEMIZED ESTIMATE from a licensed contractor for disaster related damages to the following items. (Your estimate must include a verifiable contractor name and telephone number.)
TWO ITEMIZED ESTIMATES from licensed contractors for disaster related damages to the following items. (Your estimates must include verifiable contractor names and telephone numbers.)
Heating systems
(N/A)
99. As far as Ms. Iglesias knows, her appeal remains pending at this time.
h. A tree fell on Noe and Veronica Jimenez’s home, breaking three windows and causing water damage to exposed walls and ceiling, but they were denied any housing assistance benefits due to “insufficient damage.”
100. Noe and Veronica Jimenez, both 68 years old, are an elderly married couple supporting their two grandchildren.
101. The Jimemezes live in extreme poverty, with an annual income of about $11,760 to support a household of four, including themselves and their two grandchildren, ages 15 and 11.
102. The Jimenezes’ only home is located in
103. Hurricane Dolly caused damage to the Jimenezes’ home. Dolly’s winds caused a tree to fall on the roof, and winds damaged the siding on one side of the house and destroyed three windows. Water entered and damaged the exposed walls and ceiling.
104. A contractor estimated that it would cost $1,980 to repair the home.
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105. The Jimenezes do not have any insurance to cover the repairs, or other means to make the repairs.
106. The Jimenezes applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
107. FEMA sent an inspector to the Jimenezes’ home, who listened to the Jimenezes’ description of the damage caused by Dolly.
108. On or about August 4, FEMA sent the Jimenezes a letter denying housing assistance, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
109. The Jimenezes appealed and provided a contractor statement. Their appeal remains pending. They seek to fairly resolve their claim for housing assistance as promptly as possible to minimize threats to their shelter, safety, and health.
i. Ernesto and Norma Lopez saw their entire house flooded, the whole roof and a bedroom destroyed, and find their home uninhabitable due to mold, but they were denied housing repair assistance because of allegedly “insufficient damage.”
110. Ernesto and Norma Lopez live in poverty, with an annual income of about $20,000 to support a household of four, including themselves and their two adult sons, Carlos and Leo. Carlos is a policeman injured in the line of duty when a teenager shot him in the head.
111. The Lopezes’ only home is located in
112. Hurricane Dolly caused damage to the Lopezes’ home. Hurricane Dolly caused flooding of the entire house, and destroyed the entire roof and one of the bedrooms. Sheetrock is falling from the ceiling. There is mold growing throughout the house. The house is so damaged that the family suffered with respiratory problems and cannot live there, so they have moved into Ms. Lopez’s mother’s home.
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113. The Lopezes do not have any insurance or other means to make the repairs.
114. The Lopezes applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
115. FEMA sent an inspector to the Lopezes’ home, who listened to the Lopezes’ description of the damage caused by Dolly. The inspector asked Mr. Lopez if he wanted to “relocate.” Mr. Lopez thought he meant to move permanently. It was not clear that the inspector was offering rental assistance.
116. FEMA sent the Lopezes a letter denying repair assistance due to insufficient damage.
117. The Lopezes appealed the FEMA denial on August 20, 2008, and made clear that they needed rental assistance because they have had to move out of the home until it is repaired.
118. In response to the appeal, FEMA sent a home repair grant of $100.59.
119. A contractor estimated it will cost $15,620.00 to repair the home.
120. The Lopezes appealed this amount based on the damage incurred and provided a contractor statement and pictures of the damage. Their appeal remains pending.
j. Francisca Perez’s home was flooded with two inches of water and then with the contents of her septic tank for several days, but she was denied any housing assistance benefits due to “insufficient damage.”
121. Plaintiff Francisca Perez is the head of a household which includes her husband Enrique Silguero and Ms. Perez’s three teenage children.
122. The five people in Ms. Perez’s household struggle to meet their needs with an annual food stamp allotment of about $8300 and the approximately $7600 in supplemental security income that Mr. Silguero receives each year as a result of his disability. He suffers from several serious ailments that cause him to be disabled including arthritis and an ulcer.
123. Ms. Perez’s only home is located in
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124. Ms. Perez’s home suffered extensive damage as a result of Hurricane Dolly. Roof shingles were loosened and otherwise damaged and as a result, the roof leaked. The home was flooded with about two inches of water for two or three days. Portions of the floor warped and tiles loosened. Mold and mildew developed on her windows and portions of the ceiling and walls. Plumbing problems rendered Ms. Perez’s bathtub and toilet unusable for over two weeks.
125. Waste water would back up out of the toilet and bathtub because the septic tank was overflowing with rain water.
126. Ms. Perez and her husband do not have insurance to cover the repairs, or other means to make the repairs. She had to clean the restroom three times a day for two weeks with bleach and other cleaning agents because the smell was unbearable. There was waste everywhere.
127. Ms. Perez’s daughter, who suffers from asthma, had to go to the hospital because of the foul air near her home.
128. Ms. Perez applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2). FEMA sent an inspector to inspect her home. The inspector ignored Ms. Perez’s attempts to point out the disaster-related damages, walking away from her as she was speaking. He altogether neglected to inspect the bathroom with the non-functioning toilet and bathtub.
129. On August 12, FEMA sent Ms. Perez a letter denying housing assistance, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
130. Ms. Perez appealed on August 22, 2008, and provided a contractor statement, which was costly for her to obtain. Most contractors were too expensive and were charging between $200 and $250 to provide an estimate. Finally she found someone who said he would do it for a more
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reasonable price. A licensed contractor estimated that $6,650.00 would be needed for the disaster-related home repairs. He charged her about $50.00 for his estimate.
131. Mrs. Perez took it upon herself to purchase a water pump and empty some of the septic tank water into her own backyard. It took two days to pump the waste out of the septic tank and into the yard. She expects rain to cause the problem to return.
132. FEMA denied her appeal on November 1, 2008. Quoted below is the complete explanation that FEMA provided for its second denial of home repair assistance:
You recently appealed one of FEMA’s decisions regarding your application for disaster assistance. We have thoroughly reviewed your case including all of the new information and documents you provided. Our decision(s) about your appeal is listed below:
CATEGORIES DETERMINATION
Home Repair INO-Ineligible- Other
=============== =================
Total Grant Amount: $0.00
Ineligible- Additional Repair Assistance
We have reviewed your appeal for additional Home Repair any documents you may have provided, along with the FEMA inspection(s) of your home. We have determined that the previous amount of assistance we provided was correct. As a result, your appeal is not approved and you are not eligible for additional FEMA assistance of this type.
This decision only applies to your appeal for FEMA assistance of this type. Your request for any other form of assistance is considered separately.
133. Since Ms. Perez received her denial letter, her husband has been diagnosed with bronchitis. Other members of her family are also suffering with respiratory problems, and some are using nebulizers up to four times a day to alleviate their symptoms.
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k. Rosa Elia Villarreal’s roof blew off her home and landed in her yard, and her grandchildren have required emergency medical treatment for mold-related illness because of the mildew in their home, but she was denied housing repair assistance.
134. Plaintiff Rosa Elia Villarreal is the head of a household which includes her two daughters and three grandchildren, ages 5, 4, and 1.
135. Ms. Villarreal and her family live in extreme poverty. Ms. Villarreal works and earns an annual income of about $4,800 and her daughter works and earns an annual income of $10, 400. Both incomes support a household of three adults and three children.
136. Ms. Villarreal’s only home is located in
137. Hurricane Dolly caused extensive structural and roofing damage to the Villarreals’ home. Dolly’s winds damaged the laminate roof, blowing it off and into the yard. Her house has no laminate roof at this time.
138. Because there is no roof, rainwater is leaking into the home and has caused damage to the walls and the ceiling. Mold is spreading throughout the house. Dolly also shook the house so that cracks appeared in the walls and ceiling.
139. Ms. Villarreal and her family lost personal property such as mattresses, furniture, and clothing in the home during the disaster.
140. Ms. Villarreal’s grandchildren have had to be taken to Edinburg Children's Hospital emergency room several times for treatment for allergies due to the mold.
141. A contractor estimated that the repairs to the home will cost $5300.00 for labor and $4701.98 for materials.
142. Ms. Villarreal does not have insurance or other means to make the repairs.
143. Ms. Villarreal applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
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144. FEMA sent an inspector to Ms. Villarreal’s home. The inspector did not inspect all of the damage. The inspector did not climb up to see the roof damage and did not enter the damaged parts of the home. The inspector did not speak Spanish.
145. FEMA sent Ms. Villarreal a letter denying home repair assistance on August 18, 2008.
146. Quoted below is the complete and only explanation that FEMA provided for its denial of home repair assistance:
We recognize how difficult a time this is for you and your family and we understand that may people need help following a disaster. We are committed to providing you any help we can, including important information to begin your recovery.
The Federal Emergency Management Agency (FEMA) and State of
CATEGORIES DETERMINATION
Housing Assistance INR- Ineligible – No Relocation
Medical IID – Ineligible – Insufficient Damage
Personal Property IID – Ineligible – Insufficient Damage
================ ===========
Total Grant Amount: $0.00
INR - Ineligible – Will Not Relocate
Based on our records, you told the FEMA inspector that you were not going to move from your damaged home while repairs are being made. Since you do not plan to move, you are not eligible for FEMA rental assistance at this time.
If you do need to move while repairs are being made, please contact the FEMA helpline.
147. Ms. Villarreal appealed and provided a contractor statement.
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148. FEMA sent Ms. Villarreal another letter on November 11, 2008, but it awarded her only rental assistance and did not mention decisions on any other form of FEMA assistance. She is not certain whether FEMA is still considering her application for housing repair assistance.
l. Cruz Alejandro “Alex” Zamora’s house moved on its foundation and was rendered structurally unstable, forcing his family to move into a credit-card financed travel trailer for safety, but he was denied any housing assistance benefits due to “insufficient damage.”
149. Cruz Alejandro “Alex” Zamora is a disabled U.S. Army veteran whose only home is located in
150. Mr. Zamora is the head of a household of five, which includes his wife, Leticia Zamora, and their three children, ages 14, 12, and 9.
151. Mr. Zamora and his family live close to the poverty line. As a partially disabled U.S. Army veteran, Mr. Zamora receives $471 a month in U.S. Veterans Administration benefits. He also works as a computer information-technology consultant for a company called “Small Business Computer Services,” although work there is only available to him sporadically. He has earned approximately $20,000 from this work in 2008 to date.
152. Hurricane Dolly caused extensive structural damage to the Zamoras’ home. The family took shelter in their house during the storm. The winds shook the house so hard that the family heard a cracking, popping noise, and felt the house move on its foundation.
153. Afterward, the house was so unstable that an adult stepping on the floor would cause the walls to tremble.
154. The house was structurally stable until it moved on its foundation during the hurricane.
155. Due to the damage from the hurricane, one wall of the house has bent inward, and there are cracks in the sheetrock of the house.
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156. Dolly’s winds also damaged the roof of the house, blowing off shingles and boards so that water entered the house and caused damage.
157. The Zamoras do not have any insurance to cover the repairs, or other means to make the repairs that are needed.
158. On or about August 5, 2008, the Zamoras applied for FEMA home repair assistance under 42 U.S.C. § 5174(c)(2).
159. FEMA sent an inspector to the Zamoras’ home. Mr. Zamora explained what happened, and tried to show the inspector the damage. The inspector was rude to the Zamoras and did not allow them to say anything or point out any of the damages.
160. On August 12, FEMA sent Mr. Zamora a letter denying housing assistance, listing the reason for denial as “IID-Ineligible - Insufficient Damage” and providing nothing but the form explanation quoted in paragraph 28 above.
161. Mr. Zamora and his family did not feel safe living in a house that was no longer structurally sound because the hurricane had damaged it so much that the walls trembled when a person walked on the floor.
162. Since FEMA had denied them aid to repair the house, on or about August 22, 2008, Mr. Zamora and his wife bought a used, 1987 Skylark travel trailer, advertised by the seller as “Sleeps 4,” in order to have a safe place to live.
163. The Zamoras moved into the trailer, and are living there now because it is not safe for them to live in their house, due to the damage caused by the hurricane.
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164. Because the Zamoras did not have the money to pay upfront for the $3,000 cost of the travel trailer, they had to use a credit card to finance the purchase. The Zamoras would not have spent $3,000 to buy this trailer if their house was safe to live in.
165. The trailer that the Zamoras bought, which is designed as a travel trailer big enough to sleep up to 4 people, is not really large enough for a 5-member family to live in, but the Zamoras did not have money to buy a bigger trailer.
166. The five-member Zamora family, including the three school-age children, is now living in overcrowded conditions in this trailer, because without FEMA assistance they cannot restore their house to a condition that would be safe to live in.
167. On top of the other expenses that the Zamoras have incurred because FEMA has not provided aid to repair their house, they also now have to pay $110 a month to rent a space for the travel trailer in a mobile home park.
168. Mr. Zamora appealed from FEMA’s denial, submitting his appeal by facsimile to FEMA on September 25, 2008.
169. Since September 25, 2008, FEMA has neither granted nor denied the appeal, or even acknowledged receiving it.
CAUSES OF ACTION
170. FEMA violates 42 U.S.C. §§ 5151(a) and 5174(j) by failing to adopt and implement ascertainable standards necessary to insure that housing repair assistance under 42 U.S.C. § 5174(c)(2) is made available to victims of Hurricane Dolly in an equitable and impartial manner.
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171. FEMA violates 42 U.S.C. § 5151(a) by implementing an unpublished and unascertainable “deferred maintenance” policy that effectively disqualifies low-income families from housing repair assistance, promoting rather than preventing economic discrimination.
172. Each FEMA decision to provide, limit, or deny housing repair assistance under 42 U.S.C. § 5174(c)(2) is a final agency action that is reviewable under 5 U.S.C. § 704.
173. FEMA’s failure to publish and apply ascertainable standards for its housing repair assistance decisions proximately causes ongoing irreparable injury to the individual Plaintiffs and their families, the organizational Plaintiff’s members, and the organizational Plaintiff itself in the form of danger to health, displacement, and unrecoverable costs.
174. The judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 701, et seq., empower this Court to issue all injunctive relief necessary to secure FEMA’s compliance with 42 U.S.C. §§ 5151(a) and 5174(j).
PRAYER
175. WHEREFORE, Plaintiffs pray that the Court grant them all equitable relief necessary to ensure that FEMA housing repair assistance determinations in Disaster No. 1780 are made in compliance with 42 U.S.C. §§ 5151(a) and 5174(j), including:
a. enjoin FEMA to publish and apply ascertainable standards to make its housing repair assistance decisions;
b. enjoin FEMA to reconsider all denials of housing repair assistance for Disaster No. 1780 using the standards stated in paragraph a above;
c. enjoin FEMA to provide timely and adequate notice of its actions to applicants for home repair assistance;
d. award Plaintiffs their costs and litigation expenses; and
e. award all other relief that the Court deems just and proper.
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Respectfully submitted,
/s/
November 20, 2008 ____________________________
Jerome W. Wesevich
Attorney in Charge for Plaintiffs
S.D.
State Bar No. 21193250
TEXAS RIOGRANDE LEGAL AID, INC.
Phone: (915) 241-0534
Fax: (915) 533-4108
Emily S. Rickers
S.D.
State Bar No. 24046714
TEXAS RIOGRANDE LEGAL AID, INC.
Phone: (956) 393-6207
Fax: (956) 383-4688
Robert W. Doggett
S.D.
State Bar No. 05945650
TEXAS RIOGRANDE LEGAL AID, INC.
4920 North IH-35
Phone: (512) 374-2725
Fax: (512) 447-3940
Tracy O. Figueroa
S.D.
State Bar No. 24032923
TEXAS RIOGRANDE LEGAL AID, INC.
Phone: (361) 888-0282
Fax: (361) 888-0705
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CERTIFICATE OF SERVICE
I hereby certify that on November 20, 2008, I caused a true and complete copy of the foregoing document with any referenced exhibits and attachments to be served upon the following counsel for Defendant FEMA by overnight mail:
Donald J. DeGabrielle Jr.
Mary Ellen Martinet, Senior Counsel Office of the Chief Counsel Federal Emergency Management Agency 500 C Street, SW Washington, DC 20472
/s/
__________________________________
Jerome W. Wesevich FOR THE SOUTHERN DISTRICT OF TEXAS LA UNION Plaintiffs, § § Civil Action No. v. § § 1:08-cv-487 FEDERAL EMERGENCY MANAGEMENT § AGENCY, § Defendant. § MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs are survivors of Hurricane Dolly. They seek a preliminary injunction to compel Defendant Federal Emergency Management Agency (FEMA) to comply with its nondiscretionary duties under 42 U.S.C. §§ 5151(a) and 5174(j) to: (1) publicly disclose the standards that it uses to decide applications for housing repair assistance; and (2) decide these applications in an equitable and impartial manner, without using hidden internal rules that effectively prevent low-income families from accessing home repair assistance. Plaintiffs seek this relief to minimize ongoing, irreparable harm to their families in the form of health hazards, displacement, and destruction of their property. In support, Plaintiffs would respectfully show: OVERVIEW Congress allows families up to $28,800 in disaster relief, including home repairs. 42 U.S.C. § 5174(c)(2) and (h). FEMA administers this statute. PIE-6 (A list of attached “Preliminary Injunction Exhibits”—cited here as “PIE”—follows this motion). Plaintiffs are and represent individuals whose homes were damaged by Hurricane Dolly in July 2008. They and thousands like them applied for housing repair assistance, but FEMA denied their applications without telling them the actual reason for the denial. PIE-7 to 18. 2 FEMA refuses to provide housing repair assistance to roughly half of all applicants in FEMA admits that it refused to provide repair assistance to many people in the Valley because it considers the substandard construction of the housing, and not Hurricane Dolly, to be the main cause of the damage to the homes. PIE-2, 16, and 17. FEMA regulations lack ascertainable standards for determining when housing repair assistance will be made available. See 44 C.F.R. § 206.117(b)(2) and (c). This violates 42 U.S.C. § 5151(a), which requires FEMA to issue all regulations necessary to “insur[e] that the distribution of [housing repair] assistance ... be accomplished in an equitable and impartial manner....” Congress not only requires FEMA to publish ascertainable standards, it requires FEMA to do so in a manner that does not discriminate based on “economic status.” afford to live in anything but substandard housing. The high repair denial rate in the Valley results from FEMA’s unpublished and vague rule requiring the rejection of housing repair applications in cases of substandard housing — a rule that institutionalizes economic discrimination. FEMA’s lack of ascertainable standards in its regulation, and its use of vague and hidden internal rules, leave families with low incomes and imperfect homes in the dark and at the mercy of FEMA’s unfettered discretion. By this lawsuit, Plaintiffs seek housing repair assistance decisions that are based upon the rule of law. Before filing this lawsuit, Plaintiffs wrote FEMA to learn what legal standards it applies to decide what housing repair assistance will be provided to victims of Hurricane Dolly. PIE-1. In 3 response, FEMA did not explain, provide any standards, or agree to discuss them. Accordingly, Plaintiffs seek a preliminary injunction requiring FEMA to state ascertainable standards for housing repair assistance that satisfies 42 U.S.C. § 5151(a), and then to apply the standards as it reconsiders the denials of housing repair assistance that it issued to the victims of Hurricane Dolly. Without the injunction, Plaintiffs and low-income families across the — including children, elderly, and disabled people — face irreparable harm in the form of injuries, illness, and displacement. PIE-7 to 14. FACTS A. Background Hurricane Dolly hit the declaration number 1780. Eight days later, FEMA made federal disaster relief, including home repair assistance, available to families in Congress allows each family up to $28,800 in total disaster relief services, including home repairs. 42 U.S.C. § 5174(c)(2) and (h). PIE-6. Means testing of home repair assistance is forbidden except as to insurance, so repair assistance is available to families regardless of their income or assets. Congress requires FEMA to issue all necessary regulations to “insur[e] that the distribution of [housing repair] assistance … be accomplished in an equitable and impartial manner, without discrimination on the grounds of … economic status.” 42 U.S.C. § 5151(a). B. FEMA Lacks Ascertainable Standards for Housing Repair Assistance FEMA’s various statements of the legal standards that it applies to decide housing repair applications are not consistently understood or applied by applicants, inspectors, local officials, FEMA contractors, or even FEMA officials themselves. 4 For example, FEMA states that housing repair assistance is available to “insure the safety or health of the occupant” without stating what immediacy or magnitude of risk qualifies a repair for coverage, so that FEMA may choose to repair only items that pose an immediate or severe threat, or it may choose to repair anything that bears a conceivable relationship to health and safety. 44 C.F.R. § 206.117(b)(2); id. at § 206.117(c). FEMA also states that housing repair assistance is available to “make the residence functional,” 44 C.F.R. § 206.117(b)(2)(ii), and defines “functional” so broadly as to approach meaninglessness: “an item or home capable of being used for its intended purpose.” 206.111. FEMA writes the following to housing repair applicants: “By regulation, the FEMA Individuals and Households Program (IHP) can address only your emergency repairs and needs. This program is not intended to fully restore your property to pre-disaster condition.” PIE-5. While FEMA uses hidden internal rules to deny repair assistance because of substandard materials and construction, FEMA’s public regulations allow assistance to repair homes up to minimal building codes, even if this improves homes beyond their pre-disaster condition. 44 C.F.R. § 206.113(b)(5). FEMA never says if, how, or when it applies this regulation. C. FEMA Cites “Deferred Maintenance” As Its Internal Reason for Denial Disaster No. 1780 covers the States, and a region with much housing that is poorly constructed. FEMA has applied unascertainable standards to deny housing repair assistance to somewhere between ten and fifteen thousand low-income families in the Hurricane Dolly struck, roughly half of all applicants, including the individual Plaintiffs and members of the organizational Plaintiff. PIE-1 to 2. 5 FEMA admits that its home repair denial rate is unusually high for Hurricane Dolly, Major Disaster No. 1780. FEMA explains the high denial rate as follows: “A lot of the homes built were built from second hand materials. So the damage was, in most cases, caused from the faulty building of the house, and not the storm.” PIE-2. FEMA collects, maintains, and uses information concerning a category of home repair applications that FEMA labels “deferred maintenance,” but publicly available legal standards do not mention “deferred maintenance” or explain how FEMA uses this category of applications. D. FEMA Declines To Discuss Ascertainable Housing Standards In response to a written request from Plaintiffs’ counsel, FEMA has not provided or agreed to discuss its legal standards for deciding home repair applications. PIE-2. Absence of ascertainable FEMA standards for equitable and impartial distribution of housing repair assistance, as required by 42 U.S.C. § 5151(a), produces the following consequences: a. FEMA makes arbitrary, subjective decisions about who gets housing repair assistance, and how much assistance is provided in each case; b. FEMA housing damage inspectors do not use consistent methods to gather the facts upon which its housing repair assistance decisions are based; and c. applicants for housing repair assistance are not provided sufficient factual or legal information to determine whether to undertake the effort necessary to appeal FEMA’s denial of assistance. E. FEMA’s Violation of § 5151(a) Harms Plaintiffs The individual Plaintiffs suffered damage to their homes from Hurricane Dolly, applied to FEMA for home repair assistance, and were denied this assistance without being told what facts 6 and legal standards FEMA relied upon to deny this assistance. PIE-7 to 18; see also Plaintiffs’ Complaint for Injunctive Relief at ¶¶ 27 to 169. Plaintiff Francisca Perez’s experience illustrates the problem at issue in this case. Ms. Perez is the head of a household which includes her three teenage children and her husband Enrique Silguero, who is disabled. PIE-13. Ms. Perez’s only home is located at Mile 15 1/2 North 5 3/4 in West her family have lived there since 1994. Ms. Perez’s home suffered extensive damage as a result of Hurricane Dolly. Roof shingles were loosened and otherwise damaged and as a result, the roof leaked. The home was flooded with about two inches of water for two or three days. Portions of the floor warped and tiles were loosened. Mold and mildew developed on her windows and portions of the ceiling and walls. Plumbing problems rendered Ms. Perez’s bathtub and toilet temporarily unusable. Waste water would come up from the toilet and bathtub because the septic tank was overflowing with rain water. She had to clean the restroom three times a day for two weeks with bleach and other cleaning agents because the smell was unbearable. There was waste everywhere. Ms. Perez’s daughter is an asthmatic. She had to go to the hospital because the smell was too much to handle. Ms. Perez and her husband do not have insurance or any other means to make the repairs that remain necessary to their home. Ms. Perez applied for FEMA home repair assistance under 42 U.S.C. § 5174 (c) (2) FEMA sent an inspector to inspect her home. The inspector ignored Ms. Perez’s attempts to point out the disaster-related damages, walking away from her as she was speaking. He altogether neglected to inspect the bathroom with the non-functioning toilet and bathtub. 7 On August 12, 2008, FEMA denied Ms. Perez’s application for home repair assistance. Quoted below is the complete and only explanation that FEMA provided for its denial: The Federal Emergency Management Agency (FEMA) and State of considered all available information regarding your request for assistance. Our decision(s) about your request is listed below: CATEGORIES DETERMINATION Housing Assistance IID- Ineligible - Insufficient Damage Personal Property $758.97 ============== =========================== Total Grant Amount: $758.97 IID- Ineligible- Insufficient Damage 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 to your home that are related to this disaster. Although the disaster may have caused some minor damage, it is reasonable to expect you or your landlord to make these repairs. At this time you are not eligible for FEMA housing assistance. If you do not agree with our decision, you have the right to appeal. Please send us documents such as a statement from local officials, contractor estimates, etc. to show that the damage to your home was caused by the disaster and has caused unsafe or unlivable conditions. Ms. Perez appealed on August 22, 2008, and provided a contractor statement, which was costly for her to obtain. Most contractors were too expensive and were charging between $200 and $250 to prepare an estimate. Finally she found someone who said he would provide an estimate for less money. She paid a contractor about $50 for an estimate, and the contractor concluded that $6,650.00 would be needed for her disaster-related home repairs. Mrs. Perez took it upon herself to purchase a water pump and empty some of the septic tank water into her own backyard. This took two days and produced waste in the yard. She merely removed some of the water, so if it rains the problem is likely to return. 8 FEMA denied Ms. Perez’s appeal on November 1, 2008. Quoted below is the complete explanation that FEMA provided for its second denial of home repair assistance: You recently appealed one of FEMA's decisions regarding your application for disaster assistance. We have thoroughly reviewed your case including all of the new information and documents you provided. Our decision(s) about your appeal is listed below: CATEGORIES DETERMINATION Home Repair INO-Ineligible- Other =============== ================= Total Grant Amount: $0.00 Ineligible- Additional Repair Assistance We have reviewed your appeal for additional Home Repair and any documents you may have provided, along with the FEMA inspection(s) of your home. We have determined that the previous amount of assistance we provided was correct. As a result, your appeal is not approved and you are not eligible for additional FEMA assistance of this type. Ms. Perez and the other Plaintiffs claim that FEMA violated their statutory right to standards and procedures that comply with 42 U.S.C. § 5151(a). They seek a ruling on this issue to ensure that their claims for housing repair assistance are resolved not only fairly, but promptly to minimize threats to the health and safety of their families. ARGUMENT “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., — Likelihood of success on the merits is “arguably the most important” factor. Tesfamichael v. Gonzales, 411 F.3d 169, 176 (5th Cir. 2005). Here, all 1 In granting preliminary injunctions to redress prior FEMA shortcomings, courts explain: When analyzing the degree of “success on the merits” that a movant must demonstrate to justify injunctive relief, the Fifth Circuit employs a sliding scale involving the balancing the hardships associated with the issuance or denial of a preliminary injunction with the degree of likelihood of success on the merits. McWaters v. FEMA, 406 F. Supp. 2d 221, 228 ( Carnic 1980)); Ass’n of Cmty. Orgs. for Reform Now v. FEMA, 463 F. Supp. 2d 26, 33 (D.D.C. 2006), stayed in part on other grounds, 2006 WL 3847841 at * 1 (D.C. Cir. 2006). 9 four factors weigh in favor of the specific and limited preliminary injunction that Plaintiffs seek. See Proposed Order, attached.1 A. Plaintiffs are Likely to Succeed on the Merits of Their APA Claim Under the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq., courts are empowered to enter injunctive relief as necessary to ensure that federal agencies comply with federal statutes. “agency action committed to agency discretion by law” is excepted from judicial review. 701(a)(2). Thus, only agency action that is legally required can be compelled under the APA. Norton v. Southern Utah Wilderness Congress uses the following broad delegation of authority to make housing repair assistance available to disaster victims: Repairs. (A) In general. The President may provide financial assistance for— (i) the repair of owner-occupied private residences, utilities, and residential infrastructure (such as a private access route) damaged by a major disaster to a safe and sanitary living or functioning condition; and (ii) eligible hazard mitigation measures that reduce the likelihood of future damage to such residences, utilities, or infrastructure. (B) Relationship to other assistance. A recipient of assistance provided under this paragraph shall not be required to show that the assistance can be met through other means, except insurance proceeds. See also McWaters v. FEMA, 436 F. Su 2 pp. 2d 802, 817 ( resources allocated to FEMA from the federal government and Congress may be finite in monetary amount, its provision of those resources must be done equitably under the law and in 10 42 U.S.C. § 5174(c)(2) (emphasis added). Congress often enacts such “short statute[s] with broad goals and imprecise methods of accomplishing them.” Sierra Club v. Sigler, 695 F.2d 957, 965 (5th Cir. 1983). A “statute’s ambiguity [ordinarily] constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 living or function condition” means, what “hazard mitigation measures” will be eligible for assistance, and whether to make housing repair assistance available at all. Indeed, Congress recognized that § 5174(c)(2) was itself so vague that it would require a regulatory structure to be implemented in practice. This is why Congress placed a non-discretionary duty upon FEMA to create that regulatory structure: “[FEMA] shall prescribe rules and regulations to carry out this section, including criteria, standards, and procedures for determining eligibility for assistance.” After Hurricane Dolly, FEMA elected to make § 5174(c)(2) repair assistance available to families in Cameron, available, FEMA became bound by a non-discretionary duty to do so fairly: Regulations for equitable and impartial relief operations. 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 accordance with regulations designed to ‘insur[e] that the distribution of [assistance] shall be accomplished in an equitable and impartial manner, without discrimination on the grounds of ... economic status.’ See 42 U.S.C. § 5151(a). Th[is] ensures equal treatment and division of resources. 11 1. §§ 5151(a) and 5174(j) Require FEMA to Base its Housing Repair Assistance Decisions Upon Ascertainable Standards Where Congress’s intent is clear in statutory text, “the Court, as well as [federal agencies], must give effect to the unambiguously expressed intent of Congress.” Chevron Natural Resources Defense Council, 467 of Agric., 209 F.3d 785, 786 (5th Cir. 2000). The text of §§ 5151(a) and 5174(j) could not be clearer on three points: (a) Congress required FEMA to issue regulations that answer the questions left open by 42 U.S.C. § 5174(c)(2); (b) the regulations must state what “standards” FEMA will apply to make housing repair assistance available; and (c) FEMA’s standards must insure “equitable and impartial” administration of housing repair assistance. Of course, any standard must be ascertainable for its fairness to be gauged. This is why courts universally require ascertainable standards as a critical element of equitable decisionmaking in a broad array of legal contexts, including: a. Constitutional Due Process— [A]gencies following unwritten policies or procedures violate the due process rights of those who must come before the agency. It hardly need be said that the existence of an absolute and uncontrolled discretion in an agency of government vested with the administration of a vast program, such as public housing, would be an intolerable invitation to abuse. While vesting such discretion in an agency may prevent bureaucratic paralysis, due process requires that we be ruled by law and not by fiat. To allow the [federal agency] to administer a [program] using unwritten standards leads to rule by decree and not by law. Without some reasonably ascertainable standards, the [agency] is free to [act] in whatever fashion and on whatever timetable it may desire. The court cannot countenance such activity. The [agency] 12 must operate within its promulgated regulations and if it cannot then it must see to it that additional regulations are written to provide standards for needed action. Burke v. United States Dept. of Justice, Drug Enforcement Agency, 968 F. Supp. 672, 680- 81 (N.D. Ala. 1997) (citations and quotations omitted); accord Daniels v. Woodbury County, 742 F.2d 1128, 1134-35 (8th Cir. 1984); Holmes v. 398 F.2d 262, 265 (2d Cir. 1968); b. Delegation of Power From Legislative to Executive Branches— Ascertainable standards of guilt are imperative in order to protect against arbitrary, erratic, and discriminatory arrests, prosecutions and convictions. Papachristou v. City of 515 (1948). Unless the statute itself prescribes sufficiently precise standards, basic policy decisions are impermissibly delegated to the personal predilections of the police, prosecutors and juries. Smith v. Goguen, 415 v. City of responsibilities for setting the standards of the criminal law.” 415 Record Revolution No. 6 v. c. The APA’s Prohibition on Arbitrary and Capricious Agency Decisionmaking— It is well established that there must be sufficient indication in an agency’s decision of the basis for its action so that a reviewing court may ascertain whether the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. [APA,] 5 U.S.C.A. § 706; Estate of French v. FERC, 603 F.2d 1158 (5th Cir. 1979). In this ratemaking context, to determine whether the agency’s action is in accordance with law, there must be sufficient articulation of the Commission’s reasoning for us to ascertain whether the end result is just and reasonable. [T]he Commission's explanation here of the lower limit of the zone of reasonableness is inadequate. While the Commission and the ALJ relied upon allowed rates of return to establish the upper limit on the zone of reasonableness, they curiously did not rely on allowed rates to establish the lower limit. We are only told that the “cost-of-living” index at the time was in the vicinity of 12%, without any indication as to which index was relied upon. Accordingly, we cannot ascertain whether an appropriate index has been identified. We are not told whether the rate of which notice was taken was a monthly rate annualized, a rate calculated over an actual year’s span, or a projected inflation rate. Aside from the absence of any indication of whether an appropriate inflation rate has been utilized, the Commission has provided no explanation of its concept of the proper relationship between the appropriate inflation rate and the lower limit of the zone of reasonableness. Arkansas Louisiana Gas Co. v. Federal Energy Regulatory Com., 654 F.2d 435, 442-43 (5th Cir. 1981) (footnotes omitted); and 13 d. The Employee Retirement Income Security Act (ERISA)— To safeguard . . . the establishment, operation, and administration of employee benefit plans, ERISA sets minimum standards . . . assuring the equitable character of such plans. Rush Prudential HMO, Inc. v. Moran, 536 When Congress enacted §§ 5151(a) and 5174(j), it is presumed to have been aware of this abundant law requiring ascertainable standards for equitable decsionmaking. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., Local 737 v. Auto Glass Employees Fed. Credit Union, 72 F.3d 1243, 1248 (6th Cir. 1996) (“It is a settled principle of statutory construction that when Congress drafts a statute, courts presume that it does so with full knowledge of the existing law.”). Nothing in the text of these statutes indicates any intent to depart from this principle. To the contrary, Congress not only required FEMA to issue equitable standards, it required FEMA to “insure” that its standards are adequate to “accomplish” equity. FEMA therefore violates the plain text of §§ 5151(a) and 5174(j) when it fails to base its housing repair assistance decisions upon ascertainable standards. 2. FEMA Violates §§ 5151(a) and 5174(j) By Failing to Base its Housing Repair Assistance Decisions Upon Ascertainable Standards FEMA’s only regulations addressing eligibility for home repair assistance appear at 44 C.F.R. §§ 206.113, 206.117(b)(2) and 206.117(c)(1). These regulations merely paraphrase the statutory text that appears at 42 U.S.C. §§ 5174(a), (b)(1), and (c)(2), and add nothing substantive to that text. FEMA’s regulations are easily summarized as follows: FEMA may make housing repair assistance available if an applicant meets the requirements of 42 U.S.C. § 5174. The Supreme Court calls these “parroting regulations” because “instead of using its expertise and experience to formulate a regulation, [the agency] has elected merely to paraphrase the statutory 14 language.” Gonzales v. Oregon, 546 of Agric., 485 F.3d 1247, 1258 (11th Cir. 2007). Courts do not defer to agency interpretations of parroting regulations. the statute itself establishes the known contours of the law, and the agency declined to take a position on gaps left by the statute. Parker v. Office of Personnel Management, 974 F.2d 164, 167 (Fed. Cir. 1992). For example, Congress makes assistance available for “the repair of owner-occupied private residences, utilities, and residential infrastructure ... to a safe and sanitary living or functioning condition” and for “eligible hazard mitigation measures.” 42 U.S.C. § 5174(c)(2)(A) (emphasis added). FEMA simply repeats “safe and sanitary living or functioning condition” and “eligible hazard mitigation measures” as its only regulatory statement of what housing repairs “may” be covered. 44 C.F.R. § 206.117(b)(2)(i); id. at § 206.117(c)(1). FEMA cannot satisfy § 5174(j) with a regulation that simply repeats the statutory standard in § 5174(c)(2)(A) because Gonzales shows such regulations to be devoid of effect. If such empty regulations could satisfy § 5174(j), the statute would be meaningless, and this is not allowed. FEMA leaves critical questions completely unaddressed in any published policy statement, including what magnitude, severity, and immediacy of health risk qualifies a repair for “safety” purposes. Of course most home repairs can be justified in terms of safety. By declining to state any standard for what safety risks merit repair assistance, FEMA retains unfettered discretion to cover most repairs or no repair according to its fiat. As one court explains: On its face, the rule proscribes only conduct which is both “unbecoming” and “detrimental to the service.” It is obvious, however, that any apparent limitation on the prohibited conduct through the use of these qualifying terms is illusory, for “unbecoming” and “detrimental to the service” have no inherent, objective content from which ascertainable 3 Further examples of the absence of regulations necessary for equitable and impartial administration include: (a) absence of any ascertainable standard for “living or functional condition” — stated in 42 U.S.C. § 5174(c)(2)(A) and repeated verbatim in 44 C.F.R. § 206.117(b)(2) and (c)(1) — in light of the fact that any repair arguably makes a home more functional, so that FEMA could cite “living or functional condition” to allow or deny any repair it cares to cover; (b) absence of any ascertainable standard for when a “predisaster primary residence [is] rendered uninhabitable” — stated in 42 U.S.C. § 5174(b)(1) and repeated in 44 C.F.R. § 206.113(a)(8) — for without objective habitability standards, subjectivity controls what people consider livable conditions for themselves, their family and friends, and strangers; and (c) consistent use of “may” throughout FEMA’s home repair regulations so that they at most say what FEMA may or may not decide to cover in the future without giving any guidance on when, how, or where FEMA may decide what repairs FEMA actually “will” cover (for example, FEMA broadly defines “eligible hazard mitigation measures” to mean almost any conceivable repair, see 44 C.F.R. § 206.111, and then adds hazard mitigation measures to a laundry list of items that it “may” cover if it so “determines,” see 44 C.F.R. § 206.117(c)(viii). 15 standards defining the proscribed conduct could be fashioned. Like beauty, their content exists only in the eye of the beholder. The subjectivity implicit in the language of the rule permits police officials to enforce the rule with unfettered discretion.... Bence v. Breier, 501 F.2d 1185, 1190 (7th Cir. 1974). For FEMA, safety is in the eye of the beholder. For example, a hole in a roof, window, or wall threatens injury by allowing precipitation, wind and dust, rodents, and intruders to enter. These pose varying degrees of health risk due to cold and heat loss, mold growth and inhalation, electrical shock, slipping, falling debris, animal bites, and assault. Depending on what risk FEMA deems acceptable, it can deem homes “safe” even though a roof is missing in the case of Ms. Villarreal, or the home is unstable in the case of Mr. Zamora, or the floor is subject to leaks and slippage in the case of Mr. Gonzales, a quadriplegic who risks falling while being transferred into bed from his wheelchair.3 4 FEMA’s lack of ascertainable standards for housing repair assistance is also confirmed by the following inconsistent standard that FEMA inspectors provide to applicants: • Will FEMA pay for all my damages? By regulation, the FEMA Individuals and Households Program (IHP) can address only your emergency repairs and needs. This program is not intended to fully restore your property to pre-disaster condition. PIE-5 (emphasis added). But no relevant FEMA regulation uses the word “emergency,” and an “emergency” limitation is not only undefined, it is inconsistent with the “health and safety” and “functionality” standards that appear in the text of FEMA regulations. 5 FEMA’s housing repair denial notices provide further evidence that FEMA lacks ascertainable standards. PIE-19. FEMA uses identical form language to notify all applicants that they are denied housing repair assistance due to insufficient damage. FEMA does not notify applicants of any specific facts that it relies upon to deny this assistance. what information the inspector sought or what information was found. This prevents “equitable and impartial” administration of housing repair assistance. In Billington v. Underwood, 613 F.2d 91, 94 (5th Cir. 1980), for example, a public housing applicant “was not provided with an adequate statement of the basis for the housing authority’s determination that he was ineligible for public housing.” The court explained that “[s]uch a statement must be sufficiently specific for it to enable an applicant to” know how to respond and prepare evidence in support of the applicant’s position. determination itself is required “in the statement of reasons given the rejected applicant . . . in order to enable him to test the veracity of the agency’s findings against him.” principles, the court concluded that “the housing authority merely parroted the broad language of the regulations” in its letter. Nor does FEMA’s form-letter inform applicants of the legal standard that FEMA relies upon, because, for example: (a) the form language does not mention “deferred maintenance;” (b) the language does not indicate who decides what assistance is “reasonable” and how that decision is made; (c) the notices omit any reference to sanitation even though this is a basis for repair under 16 If safety is the primary concern of the statute and regulations,4 the home repair program cannot be “equitably and impartially” administered without ascertainable safety standards. Applicants, inspectors, contractors, local officials, FEMA appeal officers, and FEMA officials may all well have different ideas about what poses a valid safety threat. Without ascertainable standards, they will all focus on different facts, and they will not be able to communicate as necessary to render equitable and impartial decisions.5 the statute and parroting regulation at 44 C.F.R. § 206.117(b)(2); and (d) the notices separate two standards (“unsafe or unlivable conditions”) after first conflating them (“unsafe to live in”). The form language does not tell applicants whether they were denied assistance because (a) deferred maintenance was the main cause of a serious safety problem; (b) the problem is not a sufficient threat to safety; or (c) a serious safety problem that was not caused by deferred maintenance is only “minor” so that “it is reasonable to expect you ... to make these repairs.” FEMA’s form letter advises applicants of their right to appeal. But even fully adequate appeal is insufficient by itself to insure equitable and impartial administration of the housing repair assistance program. The right to appeal is meaningless unless it is preceded by adequate notice. See Kapps v. Wing, 404 F.3d 105, 125-26 (2d Cir. 2005) (“it is common sense that a scheme which relies on beneficiaries to seek out basic information on why the agency took the action it did will result in ‘only the aggressive recev[ing] their due process right to be advised of the reasons for the proposed action’”); accord Vargas v. Trainor, 508 F.2d 485, 490 (7th Cir. 1974). 6 FEMA defines “safe [to] mean secure from disaster-related hazards or threats to occupants.” 44 C.F.R. § 206.111. This only compounds the difficulty of deciphering “safe” because it simply defines one vague word in terms of two equally vague and undefined words: hazard and threat. 17 An example of ascertainable housing safety standards may be found in regulations already written by the U.S. Department of Housing and Urban Development. See 24 C.F.R. § 982.401. The United States Department of Agriculture also has housing safety regulations for FEMA’s consideration. See 7 C.F.R. § 3560.103. If FEMA declines to use objective housing conditions, it could state what constitutes a safety risk in terms of likelihood of injury, seriousness of injury, or immediacy of injury risk. Unless FEMA names some ascertainable standard, however, “safety” can mean anything or nothing at all according to the fiat of the person making, investigating, or deciding each application.6 This is the epitome of capricious decisionmaking, and the very conduct proscribed by § 5151(a). 18 3. FEMA Discriminates Against Plaintiffs Based on their Economic Status in Violation of § 5151(a) By Basing Housing Repair Assistance Decisions Upon an Undisclosed and Vague “Deferred Maintenance” Policy The fact that FEMA does not state its home repair policies in regulations has not prevented FEMA from making critical policy choices. An important example is FEMA’s “deferred maintenance” policy, which is never mentioned in any regulation. FEMA confirms that it applies a “deferred maintenance” policy to decide what home damages it will deem to be “disaster-related” under 42 U.S.C. § 5174(b)(1) and 44 C.F.R. § 206.113(a). PIE-2. Under this policy, FEMA somehow evaluates the pre-disaster condition of the home, and may deny all or some home repair assistance if it somehow concludes that the damage at issue was “caused by the faulty building of the house, and not the storm.” has relied upon its “deferred maintenance” policy to deny housing repair assistance to some ten thousand families after Hurricane Dolly struck the FEMA’s deferred-maintenance policy raises important concerns under 42 U.S.C. § 5151(a). Foremost is economic discrimination. Poor people are least likely to be able to afford to maintain their homes, and poor people are most likely to live in areas of substandard housing, including unincorporated subdivisions called colonias that are scattered throughout the replacing their roofs in the hope that a hurricane would cause FEMA to pay for the work. Repair costs may well be higher when disasters strike poor areas, but nothing suggests that Congress wanted, or would tolerate, “deferred maintenance” to be used to deny disaster relief only to those who need it most: low-income families. Consider the repair costs that would be submitted to FEMA if an earthquake hit San Francisco. Materials and labor are much more expensive in 7 Another important hypothetical is necessary to illustrate the economic discrimination inherent in FEMA’s deferred maintenance rule. If a homeowner re-roofs in 2005, maintains that roof perfectly, and a disaster tears off the roof in 2008, FEMA would presumably cover the cost of a new roof, and the homeowner would have effectively gained three years of cost-free roofing. FEMA never makes any mention of depreciation rules designed to recover this type of “windfall” to wealthier homeowners, but its deferred maintenance rule attempts to wholly foreclose repair assistance to low-income homeowners to avoid the identical “windfall.” 19 the high cost of living there. Yet apparently FEMA does not have a rule that would prevent the coverage of the higher housing repair costs that would be expected in that particular area, somehow faulting citizens for choosing to live in the needs of these presumably wealthier disaster victims as the disaster found them.7 Section 5151(a) requires FEMA to do no less for poor as to live in substandard housing prior to facing Hurricane Dolly. For all of these reasons, Plaintiffs maintain that FEMA cannot articulate a deferred maintenance standard that does not institutionalize economic discrimination in violation of § 5151(a). And even if FEMA could theoretically do so, it certainly has not yet done so. Much to the contrary, FEMA’s current deferred maintenance policy violates § 5151(a) for many reasons, not least of which are that it appears in no regulation, it was never subject to the notice and comment required by the APA, and it is itself so vague that it cannot be equitably and impartially administered. FEMA has published no answers to critical questions concerning its deferred maintenance policy, including: • how a home’s condition prior to a major disaster can be reliably ascertained after the disaster; • whether and how fault can be reliably apportioned between a disaster and deferred maintenance when both are causal factors (for example, whether failure to clean gutters 20 before the storm would entirely disqualify an applicant for repair assistance, and if not, what facts and legal standard would be used to assign fault for this failure); and • in light of the fact that “deferred” implies a conscious choice to avoid taking an action, the extent to which FEMA’s deferred maintenance policy penalizes homeowners who fail to maintain their homes due to inability (i.e. injury, poverty, or unawareness) as opposed to choice. Unless and until FEMA provides satisfactory answers to these questions, it cannot have yet complied with § 5151(a)’s command that it equitably and impartially administer housing repair assistance in the wake of Hurricane Dolly, without discrimination on the basis of economic status. B. Plaintiffs Need A Preliminary Injunction to Prevent Irreparable Harm Plaintiffs naturally seek injunctive relief to keep their families safe, for the present condition of their houses subjects their families to injury, illness, and attack. PIE-7 to 14. Physical suffering and bodily injury are irreparable harms that injunctions are used to prevent. Harris v. Board of Supervisors, 366 F.3d 754, 766 (9th Cir. 2004); Hadix v. Caruso, 461 F. Supp. 2d 574, 598 (W.D. Mich. 2007); GP-UHAB Hous. Dev. Fund Corp. v. Jackson, 2006 WL 297704 at * 12 (E.D.N.Y. 2006); Cole v. Hills, 396 F. Supp. 1235, 1237 (D.D.C. 1975). Plaintiffs also endure displacement from their unrepaired homes. PIE-9, 12, and 14. Displacement is another form of irreparable harm that supports preliminary injunctive relief. Reed v. Heckler, 756 F.2d 779, 783 (10th Cir. 1985); McWaters v. FEMA, 408 F. Supp. 2d at 228-36 ; McNeil v. Organization, Inc., 654 F. Supp. 1106, 1118 (D.D.C. 1987); Mitchell v. Hous. & Urban Dev., 569 F. Supp. 701, 704-05 (N.D. 21 Finally, Plaintiffs live in extreme poverty, and continued disrepair of their homes costs them money because their possessions continue to be damaged in homes that remain exposed to the elements, they incur costs for makeshift temporary repairs, and they incur costs for seeking alternative shelter. E.g. PIE-13 and 14. These costs are themselves irreparable harm, especially for poor people, because the APA does not allow Plaintiffs to recover the costs from FEMA as money damages. Mississippi Power & Light Co. v. F.2d 618, 625 (5th Cir. 1985); later award of money can repair the damage that might occur to plaintiff if she does not have money to pay for necessary living expenses today.”). C. The Threatened Harm to Plaintiffs Outweighs Any Possible Harm to FEMA Courts consistently hold that prevention of irreparable harm to the public outweighs administrative costs associated with agency decisionmaking. E.g. Price v. City of F.3d 1105, 1117 (9th Cir. 2004) (“Despite the hardships the City may face in delaying some of its development plans and providing relocation benefits, we agree with the district court that it is a far more severe hardship for someone to be displaced from his or her home without assistance and without the certainty of knowing where to move.”); Artist M. v. Johnson, 917 F.2d 980, 992 (7th Cir. 1990) (agency’s monetary loss and increased administrative obligations do not constitute an irreparable harm), rev'd on other grounds, Suter v. Artist, 503 U.S. 347 (1992); Johnson v. United States Dept. of Agric., 734 F.2d 774, 789 (11th Cir. 1984) (“relative harm to the government from granting a preliminary injunction pales when compared to the serious injury class members suffer when they are forced from their homes”); Watson v. FEMA, 437 F. Supp. 2d 638, 650 (S.D. Tex. 2006), rev’d on other grounds, 2006 WL 3420613 at * 1 (5th Cir. 2006); 22 County, 2006 WL 1238559 at * 3 (D. Md. 2006) (harm of potential homelessness outweighed agency’s interest in enforcement of disputed housing regulations). D. The Proposed Injunction Would Serve The Public Interest The final factor to be weighed is the public interest. Courts more readily grant equitable relief that would promote public interest than when only private interests are involved. v. American Stores Co., 495 300 for purposes of preliminary injunctive relief. Berman v. Parker, 348 the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.”); Llewelyn v. Oakland County Prosecutor’s Office, 402 F.Supp. 1379, 1393 (E.D. Mich. 1975) (“the Constitution is the ultimate expression of the public interest”). Because Plaintiffs have shown a substantial likelihood of success on the merits, the public interest weighs heavily in their favor. Finally, Plaintiffs urge the Court to take judicial notice that public outcry in the aftermath of Hurricanes Katrina and Rita shows an enormous public interest in, and desire for, orderly administration of relief for vulnerable disaster victims, a public interest that would be served by the specific and limited injunction that Plaintiffs seek. CONCLUSION Plaintiffs only ask this Court to require FEMA to do what agencies routinely do: publish ascertainable standards, apply those standards equitably and impartially to each applicant, and notify applicants of the facts and legal basis upon which the agency’s decisions rest. Respectfully submitted, /s/ November 20, 2008 ____________________________ Jerome W. Wesevich Attorney in Charge for Plaintiffs 23 S.D. State Bar No. 21193250 TEXAS RIOGRANDE LEGAL AID, INC. Phone: (915) 241-0534 Fax: (915) 533-4108 Emily S. Rickers S.D. State Bar No. 24046714 TEXAS RIOGRANDE LEGAL AID, INC. Phone: (956) 393-6207 Fax: (956) 383-4688 Robert W. Doggett S.D. State Bar No. 05945650 TEXAS RIOGRANDE LEGAL AID, INC. 4920 North IH-35 Phone: (512) 374-2725 Fax: (512) 447-3940 Tracy O. Figueroa S.D. State Bar No. 24032923 TEXAS RIOGRANDE LEGAL AID, INC. Phone: (361) 888-0282 Fax: (361) 888-0705 CERTIFICATE OF SERVICE I hereby certify that on November 20, 2008, I served a true and complete copy of the foregoing document, with all referenced exhibits and attachments, upon the following counsel for Defendant FEMA: Mary Ellen Martinet, Senior Counsel Office of the Chief Counsel Federal Emergency Management Agency 24 Donald J. DeGabrielle Jr. U.S. Attorney’s Office Southern District of Texas I served the documents using overnight mail to the preceding addresses. /s/ __________________________________ Jerome W. Wesevich
IN THE UNITED STATES DISTRICT COURT