TIMOTHY S. HILLMAN, DISTRICT JUDGE.
The Plaintiffs are all individuals who evacuated Puerto Rico in the aftermath of Hurricane Maria, which struck the island on September 20, 2017 causing catastrophic damage. The Federal Emergency Management Agency ("FEMA") has been providing assistance to thousands of residents of Puerto Rico displaced by Maria, including the named Plaintiffs. In May, FEMA announced that as of June 30, 2018, it would discontinue Transitional Shelter Assistance ("TSA") for such evacuees.
On June 30, 3018, Judge Sorokin entered a Temporary Restraining Order ("TRO"), which I have continued until August 31, 2018 (allowing the Plaintiffs and the class to stay until checkout time on September 1, 2018) to give the parties an opportunity to fully brief the important and complex issues raised by Plaintiffs' First Amended Complaint and corresponding motion for preliminary injunction. See Continuation of Temporary Restraining Order, dated July 3, 2018 (Docket No. 19), Second Continuation of Temporary Restraining Order, dated July 19, 2018 (Docket No. 38), and Order Memorializing The Previously Granted Third Continuation of Temporary Restraining Order, dated August 22, 2018 (Docket No. 63).
This Order addresses Plaintiffs' request for a preliminary injunction, on behalf of themselves and all similarly situated individuals, to extend the provision of the emergency assistance which they are currently receiving. Specifically, Plaintiffs are asking that FEMA be ordered to continue providing the Plaintiffs with TSA until all eligible individuals either receive temporary housing or find permanent housing. For the reasons set forth below, Plaintiffs' request for a preliminary injunction is denied.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5148 ("Stafford Act"), provides the statutory authority for the federal disaster response activities of FEMA. Congress enacted the Stafford Act to provide "assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from [major] disasters." Id. § 5121(b). The Stafford Act is "designed to assist the efforts of [States affected by major disasters] in expediting the rendering of aid, assistance, and emergency services, and the reconstruction and rehabilitation of devastated areas." Id. § 5121(a).
The Stafford Act is triggered when the Governor of an affected State or Territory
42 U.S.C. §§ 5170a, 5170b(a) and (a)(3)(B)(emphasis added).
In simpler terms, the President may authorize, among other things, various forms of "Public Assistance" directed at State and local governments to assist them in performing work to prevent immediate threats to life, as well as various forms of "Individual Assistance" that provide assistance directly to individuals impacted by a disaster event. 42 U.S.C. §§ 5170-5189b.
FEMA is the federal agency the President has charged with implementing and carrying out major disaster assistance under the Stafford Act. Section 408 of the Stafford Act grants the President authority to provide temporary housing assistance to "individuals and households who are displaced from their predisaster primary residences or whose predisaster primary residences are rendered uninhabitable...." 42 U.S.C. § 5174(a)(1). Under section 408, the President, through FEMA, may provide two types of temporary housing assistance: (1) financial assistance, which is intended to pay for renting alternate housing accommodations; and (2) "temporary housing units, acquired by purchase or lease, directly...." 42 U.S.C. § 5174(c)(1); see 44 C.F.R. § 206.110. FEMA has adopted regulations that set forth policies and procedures for determinations of eligibility of applicants for public and individual assistance, eligibility of work, and eligibility of costs for assistance under sections 402, 403, 406, 407, 408, 421(d), 502 and 503 of the Stafford Act, 42 U.S.C. §§ 5170a, 5170b, 5172, 5173, 5174, 5188, 5192 and 5193.
The Stafford Act includes a limitation of liability provision which provides, in relevant part that:
42 U.S.C § 5148.
TSA is a Public Assistance program authorized under section 403 of the Stafford Act. The governing provision states that "Federal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from a major disaster..." 42 U.S.C. § 5170b(a). More specifically, section 403 authorizes FEMA to provide assistance for immediate threats, including emergency shelter. § 5170b(a)(3)(B). Such work is typically executed by local governments or nonprofits through use of congregate shelters. TSA is also intended to provide sheltering
As provided by regulation and FEMA's internal policies, FEMA does not provide financial assistance through the TSA program directly to individuals. Before TSA can be implemented, this form of assistance must be requested by the State or Territory, and the applicable Presidential declaration must include a section 403/502 -Category B (Emergency Protection Measures) and a section 408 designation, making those particular forms of assistance available. The initial period of TSA assistance is typically 5 to 14 days from the date TSA is authorized by FEMA's Assistant Administrator for Disaster Assistance. The period of assistance may be extended, in 14-day intervals, up to six months from the date of declaration upon request by the State.
Individuals and households may be considered eligible for TSA assistance if:
FEMA's internal policies further provide that transitional sheltering ends once the period of assistance interval expires unless there has been an extension requested by the State and granted by FEMA in its discretion.
Distinct from the section 403 TSA program is section 408 of the Stafford Act, which authorizes FEMA to provide direct assistance to individuals and households in response to a major disaster or emergency declared by the President:
42 U.S.C. § 5174(a)(1) (emphasis added). So called "Individual Assistance" ("IA") available under section 408 may include, inter alia, financial assistance to rent alternative housing, assistance for repairs to or replacement of homes damaged or destroyed by the disaster, and financial assistance for disaster-related needs such as replacement of personal property. See 42 U.S.C. §§ 5174(c), (e).
One form of IA is temporary housing assistance ("THA"), either in the form of financial assistance to "rent alternate housing accommodations, existing rental units, manufactured housing, recreational vehicles, or other fabricated dwellings ... [and] may include the payment of the cost of utilities, excluding telephone service."
On September 20, 2017, Hurricane Maria, a Category 5 storm, made landfall on the Caribbean island of Puerto Rico, a territory of the United States with over 3.4 million residents. That same day, President Donald J. Trump issued a major disaster declaration for the island. On October 25, 2017, the Governor of Puerto Rico formally requested that FEMA provide TSA for Puerto Ricans displaced by Hurricane Maria. Puerto Rico certified that it was responsible for the non-Federal cost share of all FEMA direct Federal assistance delivered under the Public Assistance program. On October 30, 2017, FEMA approved the request submitted by Governor Roselló for section 403 TSA and provided Puerto Ricans displaced by Hurricane Maria short-term sheltering that lasted for an initial term of 75 days, beginning on October 31, 2017 and ending on January 13, 2018.
On December 23, 2017, at the request of the Governor, FEMA agreed to extend the TSA program through March 20, 2018, an additional 66 days. On March 8, 2018, again at the request of the Governor, FEMA agreed to further extend the TSA program through May 14, 2018, an additional 55 days. On May 3, 2018, again at the request of the Governor, FEMA agreed to a final extension of the TSA program until June 30, 2018, an additional 47 days. In his letter seeking the request, Governor Roselló stated that he was seeking the extension, in part, so that those receiving assistance could stay in the continental United States in a fixed location long enough for their children to finish the school year before returning to Puerto Rico. Moreover, by June 30, 2018, all of the congregate sheltering in Puerto Rico had closed. As of June 30, 2018, the TSA program had provided support to Puerto Rico for 242 days. This Court has since ordered that the TSA program be extended through August 31, 2018, an additional 62 days.
At all times throughout the duration of the TSA program, Puerto Rico was informed and acknowledged that the TSA program is intended to provide "short-term sheltering." When FEMA granted the third extension on May 3, 2018, FEMA stated to the Governor and to the public that no further extensions of the program would be granted. FEMA's intended end date for the TSA program aligned with the end of the 100% cost share between FEMA and Puerto Rico, which was extended by the President for 240 days from the disaster declaration and is now a 90% FEMA/10% Puerto Rico share in the costs for certain types of "emergency work," which includes the TSA program. Therefore, effective June 30, 2018, Puerto Rico is responsible for covering 10% of the cost of all emergency work, including the TSA program. Governor Roselló did not request a further extension of the TSA program beyond the June 30, 2018 termination date. Any such extension would have been subject to the new cost-share arrangement.
In total, 7,032 TSA eligible applicants checked into participating TSA hotels since the genesis of the program. As of July 5, 2018, 1,006 eligible applicants remained at participating TSA hotels. To date, since the declaration disaster for Hurricane Maria, FEMA has disbursed over $2.4 billion in Public Assistance grants, over $1.1 billion for Individuals and Households, and over $92 million in implementing the TSA program.
In deciding a motion for a preliminary injunction, "a district court weighs
The Defendants assert that Plaintiffs cannot show they are likely to succeed on the merits of their claims because (1) under the Stafford Act, FEMA is immune from all non-constitutional claims, including Plaintiffs claims under the APA; (2) the Court lacks jurisdiction over Plaintiffs' claims for injunctive relief because the government has not waived its sovereign immunity; (3) Plaintiffs' procedural due process claims fails because they do not have a protected property interest in continued TSA until such time as the obtain THA; (4) Plaintiffs' substantive due process claim fails because Plaintiffs do not have a recognized liberty or property interest in housing and FEMA's discontinuation of the TSA program does not shock the conscience, (5) the remedy which Plaintiffs seek, i.e., the implementation of FEMA's Individuals and Households Program, i.e., section 408 assistance, is already in place; and (6) Plaintiffs' Equal Protection and discrimination claims were not part of their original complaint, or their emergency motion for a TRO or preliminary injunction and therefore, should not be considered by the Court. If they are considered, the claims fail because Plaintiffs cannot establish that there were treated differently from applicants seeking relief in entirely different disasters, that is, since every disaster is unique, they cannot establish that they are similarly situated to those other applicants.
The Fifth Amendment to the United States Constitution guarantees that the federal government will not deprive its citizens of property without due process of law. U.S. Const. amend. V. To prevail on their procedural due process claim, Plaintiffs must first establish that they have a property interest in continued TSA, which is protected by the Constitution. "Property interests are not created by the constitution itself. `Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source' and `that secure certain benefits and that support claims of entitlement to those benefits.'" Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 735 (5th Cir. 2008) (citation to quoted case omitted). Government benefit programs give rise to a property interest — but only when a claimant has an entitlement to the benefit:
Id. (citation to quoted case omitted).
Plaintiffs assert they have a property interest in continued assistance under the TSA program protected by the Due Process Clause through either the Stafford Act and its regulations, or an independent source such as FEMA's conduct in administering the housing assistance programs.
Plaintiffs assert that FEMA must continue the TSA program until such time as they transition into longer-term THA because the enabling statute and regulations give them a claim of entitlement to such benefits (and therefore, create a property interest protected by the Constitution). In support, Plaintiffs cite to Ass'n of Cmty. Orgs. For Reform Now, Inc. v. Fed. Emergency Mgmt. Agency, 463 F.Supp.2d 26 (D.D.C. 2006) in which the court granted injunctive relief to thousands of evacuees of Hurricanes Katrina and Rita whose section 403 benefits had been terminated and who also had been denied section 408 benefits.
Ass'n of Cmty. Orgs. for Reform NOW, Inc. v. Fed. Emergency Mgmt. Agency, 2007 U.S. App. LEXIS 929, *1-2 (D.D.C. Jan. 16, 2007). The injunction was ultimately vacated after the appeal was voluntarily dismissed. See Ass'n. of Cmty. Orgs. for Reform Now, Inc. v. Fed. Emergency Mgmt. Agency, No. 06-5403, 2007 US App Lexis 929 (D.C. Cir. Apr. 30, 2007).
More to the point, Plaintiffs' argument is undermined by the express language of sections 403 and 408 of the Stafford Act, which speak in discretionary terms, not absolutes: "Federal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from a major disaster ..." 42 U.S.C. § 5170b(a)(emphasis added). Likewise, section 408 contains a permissive grant of authority to FEMA to provide assistance, "the President, in consultation with the Governor of a State, may provide financial assistance, and, if necessary, direct services, to individuals and households in the State who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means." 42 U.S.C. § 5174(a)(1)(emphasis added). In interpreting these provisions, this Court is not writing on a clean slate. As other courts have held, neither the language of the Stafford Act nor the implementing regulations use mandatory language. See, e.g., Ridgely, 512 F.3d at 735-36; see also Pride v. FEMA, Civ. No. 1:1CV22-HSO-JMR, 2013 WL 6048153 (like section 408 financial assistance benefits, section 408 direct housing benefits are discretionary and therefore, there is not constitutionally protected property interest in receiving such benefits); Cf. Konashenko v. Fed. Emergency Mgmt. Agency, No. 12-CV-3034 SJF WDW, 2014 WL 1761346, at *8 (E.D.N.Y. Apr. 29, 2014)(since FEMA had discretion to decide whether to award plaintiff funds for the sea wall destroyed by Tropical Storm Irene, she had no reasonable expectation that she would get the benefit, and therefore, there is no protected property interest in the benefits themselves).
Plaintiffs point out that section 403 does not include a termination date for benefits — suggesting that Congress thus intended that once granted, TSA continues until such time as the applicant is transitioned into THA. However, as the Ridgely court stated with respect to an analogous argument regarding continued entitlement to section 408 assistance: "it is unsurprising that no termination provision can be found in section 408 or the regulations, as such a provision would only be necessary if there were a stream of benefits to terminate." Id., at 739. Similarly, given that section 403 and its regulations do not mandate that assistance be provided indefinitely once awarded, or at least until the applicant is transition into the THA program, there is no need for a termination provision.
I agree with FEMA that Plaintiffs' assertion that they have an entitlement to continued TSA benefits is even more tenuous in this case than in Ridgely, which is a factually similar case. In this case, the Governor of Puerto Rico has not requested that assistance under the TSA program be extended.
For the reasons stated above, I find that the Plaintiffs have not established they have a protected interest in receipt of TSA benefits under the Stafford Act and its accompanying regulations. Furthermore, that the Plaintiffs have been deemed eligible for assistance under the TSA program does not create a property interest in continued assistance under that program. Cf. Ridgely, 512 F.3d at 736 (given that section 408 and the regulations do not provide entitlement to financial assistance, that plaintiffs were previously found eligible for assistance is of no matter). Additionally, I find the Ridgely court's reasoning persuasive in denying Plaintiffs' assertion that they have a property interest in obtaining section 408 benefits.
Plaintiffs' assertion that FEMA's conduct and actions have created an expectation of continued TSA benefits fares no better. More specifically, Plaintiffs assert that FEMA's policies and practices in regards to carrying out the TSA program creates a property interest in their continued receipt of TSA, until such time as they are transitioned into the THA program. Plaintiffs acknowledge that on the record before me, there is insufficient evidence to make a determination on this claim. Plaintiffs, therefore, ask the Court continue the TRO and grant a period of fact finding followed by an evidentiary hearing. I agree
I find that the Plaintiffs have failed to establish that they have a protected property interest under sections 403 and 408 of the Stafford Act. For that reason, it is not necessary for me to address their assertion that the notices they have received (to the extent that they have received notice) are inadequate — primarily because the notices do not provide any information regarding their right to appeal, or their right to housing or transitional assistance. For the reasons stated, I find that Plaintiffs are unlikely to succeed on the merits of their procedural due process claim.
Like their procedural due process claim, to state a claim for violation of their substantive due process rights, Plaintiffs must first establish that they have "a valid property interest in a benefit that was entitled to constitutional protection...." Konashenko, 2014 WL 1761346, at *10; see also Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir. 2005)(as in procedural due process context, plaintiff must, as a condition precedent to stating a claim, identify a constitutionally protected interest in life, liberty or property). I have previously found that Plaintiffs have failed to establish that they have a property interests in continuing benefits under section 403 and/or obtaining benefits under section 408 of the Stafford Act. Therefore, their substantive due process claim also fails. Moreover, "[t]o establish a substantive due process claim, a plaintiff must demonstrate an `abuse of government power that shocks the conscience' or `action that is legally irrational in that it is not sufficiently keyed to any legitimate state interests.'" Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001). Little need be said on this issue, simply put, Plaintiffs cannot establish that FEMA's discontinuance of their TSA benefits "shocks the conscience," for substantive due process purposes, see Avalos v. City of Glenwood, 382 F.3d 792, 800 (8th
Plaintiffs assert that the Defendants have violated their right to equal protection of the laws by discriminating against them on the basis of race, national origin and kind of American citizenship by providing a lesser level of housing assistance because they are Puerto Rican.
Barrington Cove Ltd. P'ship v. Rhode Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001).
Plaintiffs have cited to what they claim are "stark differences" in FEMA's treatment of victims of Hurricanes Harvey and Irma versus its treatment of Puerto Rican victims of Hurricane Maria. More specifically, they allege that Hurricane Harvey and Irma victims received seven extensions of TSA benefits whereas Plaintiffs received only three, which amounted to two months of additional benefits to victims of Hurricanes Harvey and Irma. They also cite to the fact that FEMA had approved over twenty-two times the amount of financial assistance for victims of Hurricane Harvey as it did in the same amount of time for victims of Hurricane Maria. However, Plaintiffs fail to address how the three hurricanes impacted the
Plaintiffs assert that as Puerto Ricans, they have been discriminated against under the Stafford Act in violation of 42 U.S.C. § 5151(a) (barring discrimination based on race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.) I agree with Defendants that in their initial briefing of this claim, Plaintiffs, at best, make conclusory allegations that discontinuance of the TSA program constitutes discrimination against them based on their race, color, English proficiency, or economic status.
Plaintiffs assert that Defendants conduct violates the following provisions of the APA: (1) section 706(2)(B), because FEMA's termination of the TSA program as to them is contrary to law; and (2) section 706(2)(A) because FEMA's termination of the TSA program as to them without any plan to transition them into the THA program is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law. Additionally, Plaintiffs assert that pursuant to section 706(1), the Court should compel FEMA to continue the TSA program as to them until it provides eligible evacuees sufficient THA housing. Defendants argue that this Court should deny Plaintiffs' request for injunctive relief under the APA for lack of jurisdiction because, as to these non-constitutional claims, there has been no waiver of sovereign immunity.
When bringing suit against the United States or its agencies, a plaintiff
42 U.S.C. § 5148. This discretionary funding exception encompasses FEMA's decision to terminate the TSA program as to the Plaintiffs and this Court lacks jurisdiction to address Plaintiffs' APA claims. Accord St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 325-26 (5th Cir. 2009)(Stafford Act, its regulations, and related agency guidance do not give rise to mandatory duty. They instead permit discretionary, policy-oriented choices that cannot be basis for the court's subject matter jurisdiction). Therefore, Plaintiffs are not entitled to injunctive relief based on such APA claims.
I have found that Plaintiffs have failed to establish a likelihood of success on the merits of any of their substantive claims. Under these circumstances, I find that they are unlikely to prevail on their claim for a declaratory judgment.
"Only a viable threat of serious harm which cannot be undone authorizes exercise of a court's equitable power to enjoin before the merits are fully determined." Massachusetts Coal. of Citizens with Disabilities v. Civil Def. Agency & Office of Emergency Preparedness of Com. of Massachusetts, 649 F.2d 71, 74 (1st Cir. 1981) (citing Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975)). "A preliminary injunction will not be issued simply to prevent a mere possibility of injury. A presently existing, actual threat must be shown." Id.
Although Defendants attempt to do so, there can be no serious dispute in this case that the Plaintiffs have established irreparable harm. The Plaintiffs are evacuees from a catastrophic natural disaster
The balance of hardships also tips considerably in favor of the Plaintiffs. I agree with the Plaintiffs that they will suffer disproportionate hardship given that to date, they have not been able to secure
The public interest is a more neutral factor. As the Defendants point out, it is in FEMA's interest to maximize the resources for providing assistance to the public during national disasters. It is also in the public interest that FEMA be allowed to act in accordance with its statutory mandate. At the same time, as pointed out by the Plaintiff, there is a strong public interest in helping to provide for the well-being of its citizens, particularly those who have been victims of natural disasters.
While there are factors that weigh in the Plaintiffs' favor, I have found that they are unlikely to succeed on the merits of any of their claims. Given that likelihood of success on the merits is the touchstone of the preliminary injunction inquiry, their request for injunctive relief is denied. While this is the result that I am compelled to find, it is not necessarily the right result. However, the Court cannot order that Defendants to do that which in a humanitarian and caring world should be done — it can only order the Defendants to do that which the law requires.
Plaintiffs' Emergency Motion for A Temporary Restraining Order Or Preliminary Injunction And Declaratory Relief (Docket No. 2) is