The Public Assistance Appeal Process

When FEMA denies or reduces Public Assistance, the applicant can ask FEMA to look again. FEMA's regulations give an eligible applicant the right to appeal any FEMA determination about an application for, or the provision of, Public Assistance — eligibility decisions about the applicant, the facility, the work or the costs, and denials of time extensions among them. There are two administrative levels, a first appeal decided in the FEMA region and a second decided at FEMA headquarters, and for larger disputes the Stafford Act offers binding arbitration instead of a second appeal. FEMA's regulations and its Public Assistance Program and Policy Guide (PAPPG) are the sources for this page.

The deadlines

Each level runs on a pair of deadlines, counted in calendar days from the date FEMA transmits its determination or its first-appeal decision: one for the applicant to submit its appeal to the recipient — the state, territory or Tribal Nation that administers the grant — and a longer one for the recipient to forward it to FEMA with its own written recommendation. If either is missed, FEMA denies the appeal as untimely and the decision under appeal becomes final. FEMA's guide adds that a deadline falling on a weekend or federal holiday moves to the next business day.

The deadlines changed when FEMA revised its appeal regulation with effect from the start of 2022, and FEMA applies the revised rule to major disasters declared from that date; earlier declarations run under the previous rule, whose periods were counted from receipt rather than transmittal. The periods themselves are in the regulation and the guide, and which version applies depends on the declaration — see which PAPPG version applies.

The first appeal

A first appeal is made in writing and submitted electronically through the recipient to the FEMA Regional Administrator; FEMA's guide has recipients submit it through FEMA's grants portal, with their recommendation attached. The trigger is FEMA's determination letter or memorandum, which the guide says explains what was denied and in what amount, cites the law, regulation or policy behind the decision and describes the appeal rights. Before an appeal, the guide also describes an informal option: when eligibility discussions reach an impasse, FEMA staff may offer a facilitated discussion led by a FEMA dispute resolution specialist.

FEMA reviews the appeal on the administrative record — the project application, supporting documents, photographs, technical reports and correspondence — against the law, regulations and policy that applied to that disaster. Within a period set by the regulation, the Regional Administrator either decides the appeal or asks for more information, allowing a further period to respond; a highly technical issue may go to an independent expert, which adds time, and the decision period then runs from the receipt of the information or the expert's report. FEMA may also take up eligibility issues the original determination did not raise. While a first appeal is pending, FEMA takes no action to implement the disputed determination, with exceptions the regulation lists, such as suspending funding under the federal grant rules or recovering funds where a statute specifically allows it.

The second appeal

If the first appeal is denied in whole or in part, the applicant may file a second appeal — again in writing, electronically and through the recipient — to the Assistant Administrator for FEMA's Recovery Directorate. The same pair of deadlines applies, now counted from the first-appeal decision, and the same review period, request-for-information process and technical review apply. A second-appeal decision is FEMA's final administrative decision, with no further administrative review; a determination or first-appeal decision that is not appealed in time becomes final in the same way.

What an appeal contains

FEMA's regulations and guide ask the same three things of each appeal: all the documented justification for the applicant's position, since FEMA may decide on the documents submitted with the appeal; the specific amount in dispute, which the regulation defines as the difference between the assistance sought and the assistance FEMA found eligible, stated for each issue where there are several; and the specific provisions of law, regulation or policy with which the applicant believes the determination was inconsistent — the provisions that applied to that disaster. An applicant may withdraw an appeal at any point by a written request submitted to the recipient and FEMA at the same time.

The arbitration alternative

Section 423 of the Stafford Act gives applicants a right to arbitrate disputes about eligibility for, or repayment of, assistance before the Civilian Board of Contract Appeals. FEMA's regulations set three conditions, all of which have to be met: the dispute arises from a major disaster declared in 2016 or later; the amount in dispute exceeds a threshold the regulation sets, with a lower threshold for applicants in rural areas as the regulation defines them; and a timely first appeal was denied, or FEMA has not decided it within the period the regulation allows. The request goes to the recipient, the Board and FEMA at the same time, within a period after the first-appeal decision; where FEMA has not decided, the applicant withdraws the pending appeal first and files within a period after that.

Two features make the choice consequential. Arbitration is in place of a second appeal — an applicant may pursue one or the other for the same matter, and FEMA's arbitration fact sheet says a second appeal cannot be withdrawn in order to arbitrate. And a majority decision of the Board's panel is final and binding on all parties, with no further administrative review. The Board arbitrates at no charge, but each party bears its own costs, and FEMA's guide says those costs are not eligible for Public Assistance.

Two particular cases

When the combined actual cost of all of an applicant's small projects exceeds what FEMA obligated for them, the request for the difference — a net small project overrun — goes through the appeal process, with actual cost records for each small project. And on a Section 428 alternative-procedures project, FEMA's guide does not grant appeals except for cost adjustments made after the fixed cost offer is accepted, such as those for insurance, noncompliance or audits; disagreements about damage, scope or cost are resolved before the offer is accepted, and a denied extension of the time to accept it cannot be appealed.