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Civil Rights Appellate Clinic files amicus brief in case challenging FEMA eligibility standards

The brief was filed in the U.S. Circuit Court for the District of Columbia on behalf of four nonprofit organizations that assist survivors affected by natural disasters.
members of the Civil Rights Appellate Clinic

UNIVERSITY PARK, Pa. -- The Penn State Law Civil Rights Appellate Clinic recently filed an amicus brief in the U.S. Circuit Court for the District of Columbia representing the interests of four high-impact nonprofit organizations that are on the front line assisting survivors affected by natural disasters and that advocate for improvements in assistance programs administered by the Federal Emergency Management Agency. These nonprofit organizations include the Mississippi Center for Justice, National Low Income Housing Coalition, SBP (formerly known as the St. Bernard Project), and Texas Low Income Housing Information Service.

In the brief, the organizations drew on their experiences with disaster assistance programs administered by FEMA and argued that while the agency plays a vital role in post-disaster recovery, it must carry out this crucial responsibility in a manner consistent with the “due process” embodied in the Administrative Procedures Act. This means the agency cannot fail to maintain adequate appeals procedures, nor can it fail to provide disaster survivors with the notice they need to navigate the complex system of federal regulations pertinent to post-disaster housing assistance.

The clinic’s amicus brief supports arguments made by the plaintiffs in the underlying case. Texas RioGrande Legal Aid brought a suit in the U.S. District Court for the District of Columbia on behalf of 26 disaster survivors whose homes were damaged after a series of devastating storms affecting millions of Texans in 2015 and 2016. Although these survivors sought help through FEMA’s Individuals and Households Program, their claims for assistance were denied. The plaintiffs argue that FEMA has improperly employed secret eligibility standards unbeknownst to applicants. Plaintiffs have requested the courts to order FEMA to make its standards known to the public and to reconsider their claims.

The district court dismissed the plaintiffs’ case, Barbosa v. United States Department of Homeland Security (263 F. Supp. 3d 207, July 11, 2017). Plaintiffs then appealed to the U.S. Circuit Court for the District of Columbia.

In recent years, individuals and families throughout the United States have increasingly been devastated by major storms, such as Hurricanes Dolly, Harvey, Ike, and Sandy. These storms have particularly injured vulnerable individuals and families, including the elderly, disabled, veterans, families with young children, the underinsured, and those with low income.

If the plaintiffs, with the assistance of the Penn State Law clinic, are successful before the D.C. Circuit, the case will have national impact. FEMA will need to improve its housing assistance programs so that vulnerable communities struggling with the effects of natural disasters will have an increased opportunity to receive much-needed assistance under FEMA’s programs.

“SBP advocates for innovation and systems change that will result in measurable improvements to the recovery industry,” said Reese May, SBP’s chief innovation and strategy officer. “Working with the Penn State Civil Rights Appellate Clinic on the Barbosa amicus brief provided us with a tool in which we could address one of the most prevalent systemic barriers to swift recovery—the need for FEMA to publish comprehensible guidance and implement standards for appeals that provide a clear explanation to survivors whose assistance applications are denied. The clinic’s high-quality work is incredibly meaningful and it was a pleasure to collaborate with the students and Professor Foreman.”

For years commentators have criticized FEMA for being unprepared to remedy the effects of natural disasters, for not implementing clear standards of assistance eligibility, and for not making its process of appealing adverse determinations more navigable. These criticisms were at an all-time high in the aftermath of Hurricane Katrina, yet, according to many, the agency has still not gone far enough since then to improve its processes. Meanwhile, increasingly severe storms have ravaged vulnerable populations in the United States, and claims for FEMA’s assistance have exploded in volume.

“Working with the nonprofit organizations was a remarkable experience in real lawyering and I think that is the view of all of us that worked on the case,” said Joseph Trinity, a 2018 Penn State Law graduate who was a member of the clinic. “The organizations we represented are on the front lines, helping innumerable people recover from natural disasters and advocating for needed reform in the delivery of disaster assistance.”

Each organization brought a unique and informed perspective to the issues and the clinic, under the leadership of Director and Professor Michael Foreman, harnessed their expertise to represent their interests before the D.C. Circuit. For example, clinic student Thomas Atkins worked closely with SBP, a New Orleans-based nonprofit with nationwide operations, which has allied with major partners to shrink the time between disaster and recovery and has served over 1,300 disaster-impacted clients, both homeowners and business operators. Trinity worked with the Mississippi Center for Justice, which provides legal assistance to disaster victims, once recovering $132 million dollars for low-income Mississippi households affected by Hurricane Katrina.

The clinic’s task was to coordinate the nonprofit groups’ efforts, draw upon their expertise and feedback, and produce a convincing piece of written advocacy that furthered their organizational missions.

“The work of Professor Foreman and the students in the Civil Rights Appellate Clinic drafting an amicus brief on our behalf was top notch,” said John Henneberger, co-director of the Texas Low Income Housing Information Service. “The issues related to disaster recovery and FEMA’s treatment of low-income disaster survivors are complex. The participants in the clinic grasped the overall issue and commanded the details despite the very short amount of time they had to prepare the brief. They listened, understood our position, and presented it to our complete satisfaction through cogent and persuasive arguments.”

“Penn State's appellate clinic brought a critical national perspective to issues that have long plagued our client community in South Texas,” said Jerome Wesevich, general counsel for Texas RioGrande Legal Aid. “Their amicus brief is thoroughly researched and persuasively articulated. It includes ideas that we had not developed in years of looking at the problem. It emphasizes the broad effects of the challenged agency actions in ways that our clients cannot do alone. We are deeply grateful for their hard work. Literally millions of families may benefit from it.”

Reflecting on her work on the brief, clinic student Theresa DeAngelis said: “As a team we are extremely proud that our advocacy has the potential to empower millions of survivors of natural disasters. If the court grants the petitioners’ requested relief, the transparency and fair notice survivors deserve can finally be achieved.”

Krista Dean, another clinic student, said: “Working on the brief was a wonderful opportunity to work on an issue that could help so many people. The importance of the issue and its real life implications is just one great thing about the clinic. Not many law students can say they contributed to a brief that is before a Circuit Court.”

The Civil Rights Appellate Clinic, directed by Assistant Dean of Clinics and Experiential Learning Michael Foreman, is one of nine legal clinics available to Penn State Law students, provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before state appellate courts, federal courts of appeal, and the U.S. Supreme Court. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy.

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