Barbosa v. Department of Homeland Security

The Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes federal relief to families and businesses affected by major disasters, including aid for repair of private residences. This case was brought by homeowners who challenged FEMA’s denials of or limitations on their housing repair assistance, alleging that FEMA used secret rules to decide who gets disaster assistance, and how much each person gets. The homeowners brought Administrative Procedure Act (APA) claims, including one asserting that FEMA’s determinations on their assistance applications violated 5 U.S.C. § 552(a)(1), a provision of the Freedom of Information Act (FOIA). That legal provision prohibits the federal government from relying on a rule that must be published in the Federal Register if the rule was not in fact published, unless the person affected had actual and timely notice of the rule. The district court dismissed the Homeowners’ claims for lack of subject matter jurisdiction, concluding—based on the Stafford Act’s “discretionary-function” provision found at 42 U.S.C. § 5148—that the government had not waived its sovereign immunity from suit for any of the APA claims.

Public Citizen filed an amicus brief on appeal arguing that the APA waives sovereign immunity for the Homeowners’ APA claim based on FOIA and the Stafford Act’s discretionary-function provision does not otherwise bar relief for that claim. The court ultimately held that all of the plaintiffs’ claims were barred by the Stafford Act’s discretionary-function provision. As to the FOIA publication requirement, the court held that even though publication may be nondiscretionary, the denial of Stafford Act claims remains a discretionary function and the FOIA publication violation cannot serve as a basis for review of the denial of claims for disaster relief.