NCLEJ and Colleagues Win Ruling Barring FEMA From Terminating Rental Assistance for Katrina/Rita Evacuees Without Adequate Notice and Opportunity for Pre-termination Hearing
On June 13, 2007, a federal court in New Orleans, Louisiana issued a preliminary injunction in Ridgely v. FEMA, prohibiting FEMA from 1) terminating rental assistance to victims of Hurricane Katrina and Rita without giving them adequate notice of the reason for the proposed termination and the opportunity for a meaningful pre-termination hearing; 2) seeking recovery of alleged overpayments without giving individuals an adequate written notice and opportunity for a meaningful hearing; and 3) refusing to pay rental assistance to otherwise eligible evacuees whom FEMA believes were previously overpaid without giving them an adequate written notice and opportunity for a meaningful pre-termination hearing. The court also allowed the case to proceed as a class action. The case, which raises due process and other claims, was filed in April 2007 by low-income individuals displaced by Katrina who argued that FEMA’s system is chaotic and error-prone and that FEMA’s practice of terminating rental assistance for people before giving them the chance to appeal leaves them at risk of homelessness.
In issuing the order, Judge Berrigan criticized FEMA for its unresponsive system, observing that “…the defendants appear to treat the plaintiffs’ and their prospects of homelessness and the despair and stress of such added worries as if it were gnats to be brushed away while the defendants busy themselves with creating more bureaucratic regulations. To brush off the correction of errors to the appellate process under these circumstances of real human suffering is simply unacceptable.”
Plaintiffs are represented by the National Center for Law and Economic Justice and a coalition of public interest and pro bono counsel. Lead counsel is the firm of Weil, Gotschal & Manges LLP. Other co-counsel with NCLEJ are the Public Interest Law Project; Loyola University New Orleans College of Law, Law Clinic; National Law Center on Homelessness & Poverty; Texas Appleseed; Steptoe & Johnson LLP; and The Mississippi Center for Justice.
FEMA appealed that part of the injunction requiring due process before terminating rental assistance but did not appeal that part dealing with procedures for recovering alleged overpayments. In January 2008, the Fifth Circuit Court of Appeals reversed the injunction, finding that neither the FEMA statute or regulations create a constitutionally-protected property interest in continued rental assistance. The Court remanded the case to the District Court, finding that the record was not sufficiently developed to determine whether FEMA’s “policies and practices” in administering the rental assistance program give rise to a protected property interst. In the meantime, FEMA has transferred the administration of the rental assistance program to HUD.