By Spencer S. Hsu
Washington Post Staff Writer
Thursday, November 30, 2006
The Bush administration unconstitutionally denied aid to tens of thousands of Gulf Coast residents displaced by hurricanes Katrina and Rita and must resume payments immediately, a federal judge ordered yesterday.
U.S. District Judge Richard J. Leon said the Federal Emergency Management Agency created a "Kafkaesque" process that began cutting off rental aid in February to victims of the 2005 storms, did not provide clear reasons for the denials, and hindered applicants' due-process rights to fix errors or appeal government mistakes.
"It is unfortunate, if not incredible, that FEMA and its counsel could not devise a sufficient notice system to spare these beleaguered evacuees the added burden of federal litigation to vindicate their constitutional rights," Leon, a D.C. federal judge, wrote in a 19-page opinion.
"Free these evacuees from the 'Kafkaesque' application process they have had to endure," he wrote.
The decision again casts a spotlight on the fate of the poorest members of the diaspora created by the 2005 disasters in New Orleans and along the Louisiana and Mississippi coasts. The hurricanes forced a search for housing that was one of their least visible but most far-reaching consequences.
According to FEMA, of the 720,590 households that have received rental assistance, only 33,889 families remained eligible for aid as of Oct. 19. An additional 108,088 families, mostly homeowners, are still in FEMA-provided trailers and mobile homes. As a rule of thumb, analysts estimate each household includes nearly three people.
FEMA expects fewer than 4,700 of 2.6 million applicant families to exceed a $26,200 cap on all forms of post-disaster aid by March, when an 18-month statutory cutoff takes effect.
Advocates for storm victims say FEMA has resisted providing details about its programs to them or to applicants and has whittled down rolls by imposing obstacles to obtaining aid that is mandated under federal disaster laws. Administration defenders say that FEMA adopted tougher rules to combat fraud, and that plummeting rolls are a sign that victims have recovered and are moving on.
Yesterday, FEMA spokesman Aaron T. Walker would not say how many people are affected by Leon's decision, how much has been paid to them or how much is owed. He cited "ongoing litigation" and a possible appeal.
"FEMA's emergency sheltering initiative was conceived as a compassionate but short-term solution to shelter evacuees," Walker said in a written statement. "FEMA is considering the Court's order in consultation with the Department of Homeland Security and the Department of Justice, determining how the agency will proceed."
The case affects at least 11,000 families, said Robert W. Doggett, a lawyer with Texas Rio Grande Legal Aid. Doggett and the Public Citizen Litigation Group filed suit Aug. 31 for the Association of Community Organizations for Reform Now (ACORN), an anti-poverty group.
The case was brought on behalf of storm victims cut off beginning Feb. 22 from the smaller of two post-Katrina FEMA rental assistance programs, known as Section 403 aid.
FEMA phased out the program, under which cities such as Houston, Dallas and other public entities paid landlords directly for 60,000 apartments to house evacuees and were reimbursed by the federal government.
Instead, FEMA required evacuees to reapply for its larger Section 408 program, which provides households with rental cash for three months at a time pending recertification. Applicants must provide written proof that they made pre-hurricane rental payments and that their income had dropped or rent had increased since the storm. They also must document a plan for securing permanent housing, among other requirements. About 22,195 households still receiving rental aid transferred from the 403 program.
Leon ordered that FEMA restore benefits to evacuees who were ruled ineligible to make the switch and provide three months' payments. The agency must offer details on why applicants were cut off and how they can fix their applications or appeal FEMA's decision. Both programs expire in March.
Assuming a monthly rent of $800 for a two-bedroom apartment, the cost to extend aid if every family is located would be about $20 million.
According to Leon, FEMA issued "ambiguous and unintelligible" computer-generated denial letters that included "only a cryptic code and a phrase such as 'Ineligible-Other' " to explain why benefits were denied. Recipients were referred to a vague "Applicant Guide," which in turn referred them back to the "specific reason" in the letter.
Several evacuees told the court they received "contradictory and confusing" answers when they called FEMA for explanations. Plaintiffs "are unable to address, let alone intelligently appeal, decisions they cannot understand," Leon wrote. "Guessing by an applicant from among several explanations for ineligibility does not serve the fundamental purposes of due process."
ACORN spokesman Kevin Whelan called on FEMA to comply quickly with the ruling, adding: "It's certainly possible the new Congress will take a look at some of this."