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Barbosa v. United States Department of Homeland Security

United States Court of Appeals, District of Columbia Circuit

March 1, 2019

Daniel Barbosa, et al., Appellants
v.
United States Department of Homeland Security and Federal Emergency Management Agency, Appellees

          Argued November 19, 2018

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

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

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

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

          Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Alisa B. Klein and Carleen M. Zubrzycki, Attorneys.

          Before: Katsas, Circuit Judge, and Silberman and Williams, Senior Circuit Judges.

          SILBERMAN, SENIOR CIRCUIT JUDGE

         A number of applicants sought Stafford Act economic relief from FEMA because of storm damage. They, accompanied by La Union del Pueblo Entero, appeal the district court's dismissal. We, however, agree with the district court. We lack jurisdiction over their claims because of a statutory preclusion of judicial review.

         I.

         The Stafford Act authorizes the President to provide relief in response to "major disasters." The President has delegated authority under the Stafford Act to the Federal Emergency Management Agency ("FEMA"), a subdivision of the Department of Homeland Security. In 2000, Congress established the Federal Assistance to Individuals and Households Program. Unlike the traditional approach of Stafford Act programs, which disburse federal funds to the states, which in turn disburse those funds to individuals, under this program, the federal government may provide forms of direct relief to individuals and households after a major disaster has been declared by the President.[1]

         The statute creating the program contains three specific statutory provisions designed to guide its implementation. They call for the issuance of regulations as follows:

(1)"The President shall issue, and may alter and amend, such regulations as may be necessary for the guidance of personnel carrying out Federal assistance functions at the site of a major disaster or emergency. Such regulations shall include provisions for insuring that the distribution of supplies, the processing of applications, and other relief and assistance activities shall be accomplished in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status." 42 U.S.C. § 5151(a) (emphasis added);
(2)"The President shall prescribe rules and regulations to carry out this section, including criteria, standards, and procedures for determining eligibility for assistance." 42 U.S.C. § 5174(j) (emphasis added);
(3)"The President shall issue rules which provide for the fair and impartial consideration of appeals under this section." 42 U.S.C. § 5189a(c) (emphasis added).

         But there is a fourth statutory provision of the Stafford Act applying to this case, a preclusion of judicial ...


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