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Legal Services Group Alleges FEMA Banned It From Disaster Recovery Centers

New York Lawyer
August 22, 2007

By Mark Donald
Texas Lawyer

The phone call that Tracy Figueroa received on June 6 was as surprising as it was disconcerting. It also is at the center of a Complaint for Emergency Injunctive Relief in Texas RioGrande Legal Aid Inc., et al. v. Federal Emergency Management Agency (FEMA), and embodied in Exhibit 13 of a suit filed in the U.S. District Court for the Western District of Texas. That Aug. 13 suit alleges that FEMA has violated the First Amendment rights of TRLA by denying its attorneys access to FEMA's disaster recovery centers to offer legal counsel to survivors.

Figueroa, an attorney with TRLA, says the caller identified herself as Argean Hicks, a FEMA Disaster Legal Services coordinator in Waco. In May, she began inquiring about TRLA placing its attorneys inside disaster recovery centers (DRCs). Previously she had encountered TRLA attorneys at a FEMA center in Eagle Pass, set up to help victims of a tornado that had ravaged the border community on April 24. TRLA attorneys were assisting tornado victims in their appeals of FEMA decisions that had denied them relief benefits.

From TRLA's Corpus Christi branch, Figueroa supervised these attorneys, coordinating the disaster relief efforts of TRLA, which provides free legal services to low-income survivors within its 68-county service area in Southwest Texas. For the past 10 years, says Figueroa, if there was a federally declared disaster such as Hurricane Katrina or Rita or something less devastating in scope, TRLA had been allowed to meet survivors inside these centers, which FEMA publicizes as a "one stop shop" to obtain assistance and information for all recovery needs -- among them housing, food, employment and legal services.

Hicks declines comment for this article, directing "all inquiries to FEMA's media staff." FEMA spokeswoman Kati Corsaut in the agency's Waco office also declines comment, citing the agency's policy of not discussing pending litigation.

Figueroa recalls Hicks informing her in that June 6 call that only volunteer attorneys who had accepted the terms of a 1993 agreement between FEMA and the American Bar Association's Young Lawyers Division were allowed inside recovery centers. An information sheet provided by the ABA Young Lawyers Division Disaster Legal Services says any appropriately licensed attorney who agrees to participate in the program under its established terms can volunteer.

Those terms provide in part that "[w]hile operating under this agreement, participating attorneys may not initiate, or counsel a disaster victim to initiate litigation against Federal, State, or local Governments, with respect to obtaining disaster assistance."

"That agreement limits the advice volunteer attorneys can give. They must agree not to take action against FEMA or any other governmental agency," says Figueroa. "We don't agree to those limits. We want to provide disaster victims with the full array of legal services that are available."

In fact, TRLA helped represent four Katrina evacuees, among others, who had sued FEMA in 2006 in a U.S. District Court in Washington, D.C. The ruling in Association of Community Organizations for Reform Now [ACORN], et al. v. Federal Emergency Management Agency required that FEMA send more than 4,000 letters to survivors who had been denied rental assistance by FEMA, says Figueroa. Those survivors "got a more detailed explanation of these denials so their appeals would be more meaningful."

In her June conversation, Figueroa recalls Hicks saying that FEMA would no longer permit TRLA attorneys to advise clients inside disaster recovery centers. Figueroa says she asked Hicks if she was demanding that TRLA attorneys and staff leave the Eagle Pass facility, but Hicks said no; it would be closing down shortly anyway. But TRLA lawyers would not be allowed to position themselves inside recovery centers in future disasters.

Only 10 days later, torrential rains began flooding parts of Texas resulting in a federal disaster declaration covering 32 counties. Twelve of those counties were in the TRLA service area. As FEMA disaster centers opened to service the needs of flood victims, TRLA, despite Hicks' prior warning, sent attorneys and paralegals to provide legal assistance inside the centers. But FEMA staffers allegedly turned them away in Webb, Llano and Burnet counties, according to exhibits attached to TRLA and ACORN's Aug. 13 Motion for Emergency Injunction.

"By not allowing us inside, we were basically being gagged," maintains Heather Godwin, an Austin-based TRLA attorney who is a Katrina survivor. "I tried to get into a community center in Llano County but wasn't allowed. The [FEMA representative] came outside and checked to see that I was driving away."

"They gave us different reasons, but the result was always the same," adds Figueroa. "They refused to let us in."

In its motion, TRLA also alleges it lost a second source of access to survivors -- the State Bar of Texas Disaster Hotline. The State Bar operates the hotline in conjunction with FEMA and the ABA's Young Lawyer Division. In past disasters, the State Bar automatically routed calls to one of three legal services providers in Texas -- TRLA, Lone Star Legal Aid and Legal Aid of Northwest Texas -- depending upon the area code of the incoming call. If TLRA did the intake on the call, says Figueroa, it might refer the client to an outside lawyer, or it might handle the client in-house.

But in July, things began to change. According to the TRLA motion, the State Bar of Texas, "at the request of FEMA and through its ABA representatives for Texas," terminated this referral arrangement with the legal services providers. "FEMA stated to Bar representatives that its reason for seeking termination of the referral system was that legal service providers refused to be bound by the clause in the ABA agreement prohibiting representation against FEMA."

David Hall, TRLA's executive director, also alleges in a declaration attached to the motion that on July 15 the State Bar hired "a temporary worker to screen all disaster related calls and refer the caller not to a legal aid program but to a volunteer ABA-sponsored lawyer."

Kim Davey, public information director for the State Bar, says that this is not the State Bar's fight, but she does acknowledge that the State Bar pays for the hotline and that the State Bar no longer makes automatic referrals to the three legal services agencies. "It was our decision, and it was made internally to make certain that people are still directed to someone who can assist them," she says.

ABA media relations coordinator Debbie Weixl says the ABA does not comment on pending litigation.

With its ability to offer legal services to disaster survivors compromised, TRLA felt it had no option but to file suit, asking for emergency injunctive relief.

At the Center

TRLA attorneys say their fight is not with ABA-sponsored volunteer lawyers; on the contrary, they have worked with them in past disasters with good results.

"They can be terrific in helping you with a flood insurance claim or an employer who won't pay you wages you earned before the disaster," says TRLA's Godwin. "But they are an arm of FEMA, and they will not advise a client to appeal an adverse FEMA decision."

An appeal of a denial of housing benefits is critical to a victim's recovery, says Godwin. You can't get people back on their feet without first getting a roof over their heads.

"Most people try to fight FEMA on their own, but in my experience, that doesn't work," she says. "It's only when I write the appeal or another attorney steps in -- that's when we get the benefits."

Even then it's not easy. "There is just nothing like FEMA," says Godwin. "I have been dealing with all the things that an evacuee deals with, and fighting FEMA as a legal services lawyer has been cathartic for me. But I don't think I can do this for the rest of my life and keep my hair."

It's not as though TRLA is hustling business at these centers; the nonprofit is funded by the federal government, the same as FEMA. And in its Aug. 13 injunctive relief motion, TRLA alleges it brings its own "tables, computers, and other incidental equipment necessary to work in the DRCs, and is entirely self-sufficient." According to the complaint, TRLA, as a matter of policy, doesn't approach or solicit survivors inside the centers; instead its lawyers and paralegals "passively await questions from disaster survivors who themselves take the initiative to pick up a brochure and ask a question." [See the complaint for emergency injunctive relief and the agreement between the ABA and FEMA.]

Through its press releases FEMA encourages survivors to visit DRCs and avail themselves of their resources. "Homeowners, renters and business owners benefit from face-to-face encounters with disaster assistance specialists who will help them through the recovery process," stated a July 2002 FEMA press release.

TRLA wants to be inside these recovery centers, because that's where the victims are. "We are dependent on outreach in order to help that population, and that outreach is through the DRCs and the hotline," says Godwin. "And now we are being denied access to both."

Dueling Letters

On July 25, days after FEMA allegedly prevented TRLA legal staff from entering a recovery center in Webb County, TRLA executive director Hall wrote a letter to William Peterson, FEMA's Denton-based regional administrator, "in the hope of resolving this urgent matter so that it need not impede either of our responses as the next disaster unfolds."

Peterson was traveling last week and could not be reached before presstime.

After listing the legal services that TLRA historically had provided disaster victims at relief centers -- "from contractor abuses to wills" -- Hall acknowledged that a large share of questions disaster victims ask TRLA attorneys involve FEMA benefits. But TRLA's representation of survivors during administrative appeals, claimed Hall, though adversarial, also promoted "efficiency and accuracy" within FEMA. Even FEMA recognized as much, awarding "certificates of appreciation" to four TRLA members for their work in the aftermath of Katrina and Rita, which hit the Gulf Coast in 2005.

So why, all of a sudden, had FEMA decided not to allow legal service providers inside its centers? Hall wanted to know the source, date, terms and reasons behind any FEMA policy change. There always had been ample space in DRCs, he wrote. And he was aware of no negligence or misconduct on the part of his staff.

The only explanation he could conceive of, Hall wrote, was that FEMA "somehow begrudges TRLA's role in litigation challenging FEMA practices, e.g. ACORN v. FEMA." Hall urged Peterson not to lose sight of their common mission by placing "an unnecessary barrier between disaster victims and the legal services they may need."

Peterson didn't respond to Hall's letter -- at least not until it became Exhibit 1 in TRLA's Aug. 13 Preliminary Injunction Exhibit List.

In a letter dated that same day, Peterson laid out his reasons for denying TRLA and other legal services providers access to its recovery centers. First he ran down the congressional authority under which FEMA operates its Disaster Legal Services Program and disaster recovery centers, citing the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §182). He wrote that Disaster Legal Services are implemented by the ABA's Young Lawyers Division under an agreement with FEMA. "In Texas, the ABA-YLD works with the State Bar of Texas to provide volunteers for the DLS in Texas including running the DLS hotline."

Peterson acknowledged that, in the past, the State Bar had utilized legal aid groups to run the hotline, but unless legal aid groups agreed to "looser income restrictions for client eligibility" and the same limitations imposed by the ABA YLD agreement, that was no longer "appropriate."

As far as access to DRCs, Peterson added, "Although there may have been times in the past that we have allowed outside legal services to set up in our Disaster Recovery Centers . . . that was a misunderstanding of program management at the local level."

Peterson also maintained that space limitations might require FEMA to favor one organization over another and raised a concern about liability if non-FEMA staff suffered injuries on the premises.

But Figueroa counters, "From what we have seen in the past, FEMA has allowed voluntary nongovernmental organizations in the DRCs such as Salvation Army . . . Catholic Charities other interfaith organizations."

Peterson wrote that FEMA was in no way trying to put a barrier between disaster victims and legal services. On the contrary, "We see a vast variety of legal services available to Texas disaster victims and note that on at least one occasion, you have set up services within walking distance of the FEMA Disaster Recovery Center."

As far as FEMA "somehow begrudging" TRLA for its past legal challenges, "I can assure you nothing could be further from the truth." On the contrary, Peterson stated there was "a legitimate and important role" in the process for TRLA's "spirited advocacy."

That advocacy again reared its head against FEMA when TRLA requested that U.S. District Judge Sam Sparks issue an emergency injunction permitting personnel of nonprofit legal services agencies to access disaster survivors inside DRCs, which they alleged were public spaces.

ACORN, which, according to the pleadings, describes itself as the "nation's largest community organization of low and moderate families," also is a plaintiff in the litigation. Both are represented by El Paso-based TRLA attorney Jerome W. Wesevich. Assisting him with TRLA's First Amendment issues are James A. Hemphill and William Christian of Austin's Graves, Dougherty, Hearon & Moody.

"We think this is a pretty clear case of viewpoint discrimination, which is presumptively unconstitutional," says Hemphill. "FEMA is saying we will allow lawyers to come into our recovery centers and tell victims, ‘You don't have a claim against FEMA or any other governmental agency.' But they will not allow lawyers to advise them that they may have a good case against FEMA. That is government regulation of speech based on content."

On Aug. 16, Judge Sparks held a hearing on the plaintiffs' request for a temporary restraining order. Representing FEMA is Katherine E. Beaumont, an assistant U.S. attorney for the Western District of Texas, as well as two attorneys with the Office of Chief Counsel for the U.S. Department of Homeland Security.

Beaumont filed six exhibits for the hearing, the first of which was the 11-page "Declaration of Robert V. Bennett," the temporary Operations Chief of Staff for FEMA's regional office in Waco.

Bennett alleged that DRCs are not open to the public. Besides disaster victims and their families, only FEMA and other governmental employees are authorized to be inside. He acknowledged that FEMA has permitted quasi-public organizations such as the American Red Cross and the Small Business Administration to be there.

Bennett maintained that "none of the services offered at the DRC required an attorney" and that "Legal Service Groups, including YLD volunteer attorneys, typically are not on the DRC premises."

And that while some low-level managers might have mistakenly permitted legal service providers access to DRCs in the past, alleged Bennett, "this is not FEMA policy."

Sparks did not grant the temporary restraining order but set the case for a trial on the merits of the plaintiffs' request for an injunction on Aug. 27.

"You want to know what this whole dispute comes down to?" asks TRLA's Wesevich. "It is rude to throw somebody out of a party just because you have a little disagreement with the host."

But FEMA might respond: You can party all you want, just don't throw it at our house.