Case: 4:18-cv-40111-TSH As of: 02/13/2019 08:06 PM EST 1 of 14
United States District Court District of Massachusetts (Worcester) CIVIL DOCKET FOR CASE #: 4:18−cv−40111−TSH

CLOSED

Asencio et al v. Federal Emergency Management Agency et al Assigned to: District Judge Timothy S. Hillman Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 06/30/2018 Date Terminated: 09/20/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Alian Asencio TERMINATED: 07/16/2018

represented by Brett Natarelli Manatt, Phelps & Phillips, LLP 20 N. Clark Street Suite 3300 Chicago, IL 60602 312−626−1813 Email: BNatarelli@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat Manatt, Phelps & Phillips, LLP 11355 West Olympic Blvd. Los Angeles, CA 90064 310−312−4000 Email: cderecat@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres Manatt, Phelps & Phillips, LLP 11355 West Olympic Blvd. Los Angeles, CA 90064 310−312−4000 Email: ELTorres@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro 807 Main Street Worcester, MA 01610 508−770−0600 Fax: 508−770−1300 Email: hector@pineirolegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Jones Rodriguez Manatt, Phelps & Phillips, LLP 11355 West Olympic Blvd. Los Angeles, CA 90064 (310) 312−4000 Email: JJRodriguez@manatt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jose Luis Perez

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LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 212−219−3360 Email: jperez@latinojustice.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft LatinoJustice PRLDEF 523 West Colonial Drive Orlando, FL 32804 321−418−6354 Email: kromero@latinojustice.org PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Lycia Bannan LatinoJustice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 212−739−7583 Email: nbannan@latinojustice.org PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Scott Law Office of Hector E. Pineiro, PC 807 Main Street Worcester, MA 01610 508−770−0600 Fax: 508−770−1300 Email: robin@pineirolegal.com ATTORNEY TO BE NOTICED

Plaintiff
Aracelis Velez Cruz TERMINATED: 07/16/2018

represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE

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ATTORNEY TO BE NOTICED

Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Lycia Bannan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Denise Nieves TERMINATED: 07/16/2018

represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Lycia Bannan (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED

Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Yaritza De Jesus Lopez TERMINATED: 07/16/2018

represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Lycia Bannan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rosa Rivera TERMINATED: 07/16/2018

represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat (See above for address)

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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Lycia Bannan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Angel Lauriano Munoz TERMINATED: 07/16/2018

represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Lycia Bannan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bethzaida Crespo Vicente

represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Craig J. de Recat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Iris Otero
Plaintiff Elizabeth Delgado Santos

Natasha Lycia Bannan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Natarelli (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Craig J. de Recat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eve L. Torres (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hector E. Pineiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Jones Rodriguez (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jose Luis Perez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kira Romero−Craft (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha Lycia Bannan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Scott (See above for address) ATTORNEY TO BE NOTICED
represented by Eve L. Torres (See above for address) ATTORNEY TO BE NOTICED

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Justin Jones Rodriguez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rafael Ocasio Barreto

represented by Eve L. Torres (See above for address) ATTORNEY TO BE NOTICED

Justin Jones Rodriguez (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Federal Emergency Management Agency
Defendant William Brock Long
Defendant

represented by Danielle Wolfson Young U.S. Department of Justice 1100 L Street NW Room 12312 Washington, DC 20005 (202) 616−2035 Email: Danielle.young2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rayford A. Farquhar United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3971 Email: rayford.farquhar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kari E. D'Ottavio U.S. Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 (202) 305−0568 Email: kari.e.d'ottavio@usdoj.gov ATTORNEY TO BE NOTICED
represented by Danielle Wolfson Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kari E. D'Ottavio (See above for address) ATTORNEY TO BE NOTICED

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Thomas Van Essen

represented by Danielle Wolfson Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kari E. D'Ottavio (See above for address) ATTORNEY TO BE NOTICED

Defendant Alejandro De La Campa

represented by Danielle Wolfson Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kari E. D'Ottavio (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

6/30/2018

1 COMPLAINT Class Action Seeking Injunctive and Declaratory Relief against All Defendants Filing fee: $ 400, receip 0101−7211412 (Fee Status: Filing Fee paid), filed by Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus Lope Lauriano Munoz, Denise Nieves, Iris Otero, Rosa Rivera, Aracelis Velez Cruz. (Attachments: # 1 Civil Cover Sheet co sheet, # 2 Category form)(Pineiro, Hector) (Attachment 1 replaced on 7/2/2018) (Burgos, Sandra). (Attachment 2 repla 7/2/2018) (Burgos, Sandra). (Entered: 06/30/2018)

6/30/2018 2 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Plaintiffs.(Healy, Bethan Modified on 6/30/2018 to change document restriction to public. (Healy, Bethaney) (Entered: 06/30/2018)

6/30/2018 3 MEMORANDUM in Support re 2 MOTION for Temporary Restraining Order filed by Plaintiffs. (Healy, Bethaney) M on 6/30/2018 to change document restriction to public. (Healy, Bethaney). (Entered: 06/30/2018)

6/30/2018 4 AFFIDAVIT of Natasha Lycia Ora Bannan in Support re 2 MOTION for Temporary Restraining Order filed by Plainti (Healy, Bethaney) Modified on 6/30/2018 to change document restriction to public.(Healy, Bethaney). (Main Documen replaced on 7/5/2018) (Burgos, Sandra). (Entered: 06/30/2018)

6/30/2018 5 AFFIDAVIT of Kira Romero Craft in Support re 2 MOTION for Temporary Restraining Order filed by Alian Asencio Bethaney) Modified on 6/30/2018 to change document restriction to public. (Healy, Bethaney). (Main Document 5 rep 7/5/2018) (Burgos, Sandra). (Entered: 06/30/2018)

6/30/2018 6 Proposed Document(s) submitted by Alian Asencio. Document received: Proposed Order. (Healy, Bethaney) Modified 6/30/2018 to change document restriction to public.(Healy, Bethaney) (Entered: 06/30/2018)

6/30/2018 7 District Judge Leo T. Sorokin: ELECTRONIC ORDER ENTERED. After clerk conferred with counsel, the court orde motion for Temporary Restraining Order and for Preliminary Injunction, as well as the supporting documents unsealed documents shall be provided to Defendants. (Healy, Bethaney) (Entered: 06/30/2018)

6/30/2018 8 ELECTRONIC NOTICE Setting Hearing on 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. Motion Hearing set for 6/30/2018 at 8:30 PM by telephone before District Judge Leo T. Sorokin. Counsel h provided with call−in information.(Healy, Bethaney) (Entered: 06/30/2018)

6/30/2018

9 Electronic Clerk's Notes for proceedings held before District Judge Leo T. Sorokin: Motion Hearing held on 6/30/2018 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Alian Asencio. Arguments h Motion for Temporary Restraining Order. Order to issue. (Court Reporter: Digital Recording.) To order a copy of this D Recording, please go to <a href=

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http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm>http://www.mad.uscourts.gov/attorneys/Magistrate−A </a>. For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.(A present: Pineiro, Romero, Perez, Bannam, DeRoquette, Derusha) (Healy, Bethaney) (Entered: 06/30/2018)

6/30/2018 10

District Judge Leo T. Sorokin: ELECTRONIC ORDER entered With Regard to 2 Motion for TRO. Plaintiffs filed a co today along with an emergency motion for a TRO. The Court has provided counsel for the United States copies of the p and held a telephone hearing this evening with counsel for the government and the plaintiffs. The standard for issuance injunction is the familiar four part test. The irreparable harm to the plaintiffs is obvious and overwhelming tomorrow m they will be evicted and homeless since by definition each plaintiffs home was rendered uninhabitable by the hurricane Puerto Rico, a determination previously made by the defendants. The public interest on balance favors the plaintiffs bo terms of their personal interests and considering the specter of many sick individuals without homes of their own being rendered homeless with the resulting drain on other public resources in addition to the possible human consequences. T substantially closer question is whether Plaintiffs have established a likelihood of success on the merits of one or more legal claims. The Plaintiffs in their papers and at the hearing have articulated, at least, claims that they are entitled to (1 reasonable notice of the termination of the temporary housing assistance; (2) assistance as long as they remain eligible; assistance in transition to other housing. In addition, they assert that FEMA in prior roughly equivalent disasters has ex the temporary housing assistance substantially longer than in the present disaster. On the record before the Court, whic admittedly limited in that the government has had only the most limited opportunity to respond, the Plaintiffs have demonstrated a sufficient likelihood of success to warrant an limited temporary restraining order under the totality of th circumstances and the governing law. Specifically, the affidavits from counsel show deficiencies in notice and transitio assistance. Whether that evidentiary showing prevails on a fuller record is not now necessary to decide. Accordingly, th (1) ENJOINS the Defendants and their agents from terminating the Temporary Housing Assistance program which pro payment for shelter for the plaintiffs (including the class) until at least midnight July 3, 2018 (i.e. enabling Plaintiffs an class to stay until checkout time on July 4, 2018); (2) ORDERS Defendants and their agents to provide notice and take whatever action is necessary to extend the assistance until the aforementioned deadline; and (3) SCHEDULES a teleph hearing on this matter before Judge Hillman on Monday July 2, 2018 at 12:45 p.m. This ruling is WITHOUT PREJUD any rulings by Judge Hillman. At the hearing before Judge Hillman counsel for plaintiffs ought be prepared to address more specificity, inter alia, the specific nature and basis for the right to notice, the nature and basis of the right to ongoi housing assistance, the nature and basis for the right to transition assistance, and the legal significance, if any, of the di durations of housing assistance programs. Counsel for the government ought be prepared to address, inter alia, (on Mo such further time as requested by the government) the lack of basis for the foregoing issues. Nothing in this outline lim precludes the parties from raising issues fairly within the pleadings or appropriate defenses. The Clerk will provide cal information for the call on Monday. The undersigned has addressed this motion as the emergency district judge. /s/ Leo Sorokin, United States District Judge. (Healy, Bethaney) (Entered: 06/30/2018)

6/30/2018 11 ELECTRONIC NOTICE of Case Assignment. District Judge Timothy S. Hillman assigned to case. If the trial Judge is Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Hennessy. (Healy, Bethaney) (Entered: 07/01/2018)

6/30/2018 12 ELECTRONIC NOTICE of Hearing. Telephone Conference set for 7/2/2018 at 12:45 PM before District Judge Timoth Hillman. The clerk shall provide counsel with call−in information. (Healy, Bethaney) (Entered: 07/01/2018)

7/02/2018 13 NOTICE of Appearance by Robert A. Scott on behalf of Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus L Angel Lauriano Munoz, Denise Nieves, Iris Otero, Rosa Rivera, Aracelis Velez Cruz (Scott, Robert) (Entered: 07/02/2

7/02/2018 14 NOTICE of Appearance by Rayford A. Farquhar on behalf of Alejandro De La Campa, Federal Emergency Manageme Agency, William Brock Long, Thomas Van Essen (Farquhar, Rayford) (Entered: 07/02/2018)

7/02/2018 15 MOTION for Leave to Appear Pro Hac Vice for admission of Kira Romero−Craft and Natasha Lycia Ora Bannan Filin 200, receipt number 0101−7212199 by Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus Lopez, Angel Laur Munoz, Denise Nieves, Iris Otero, Rosa Rivera, Aracelis Velez Cruz. (Attachments: # 1 Exhibit A − affidavit of Kira Romero−Craft, # 2 Exhibit B − affidavit of Natasha Lycia Ora Bannan)(Scott, Robert) (Entered: 07/02/2018)

7/02/2018 16 MOTION for Leave to Appear Pro Hac Vice for admission of Jose Luis Perez Filing fee: $ 100, receipt number 0101− by Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus Lopez, Angel Lauriano Munoz, Denise Nieves, Iris Ote Rivera, Aracelis Velez Cruz. (Attachments: # 1 Exhibit A − affidavit of Jose Luis Perez)(Scott, Robert) (Entered: 07/02

7/02/2018 17 Summons Issued as to Alejandro De La Campa, Federal Emergency Management Agency, William Brock Long, Thom Essen. Counsel receiving this notice electronically should download this summons, complete one for each defend serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notic electronically for completion of service. (Burgos, Sandra) (Entered: 07/02/2018)

7/02/2018 18

Electronic Clerk's Notes for proceedings held before District Judge Timothy S. Hillman: Telephone Conference held o 7/2/2018, Case called, Counsel appear for hearing on motion of TRO, Court hears arguments of counsel, Court rules ta under advisement 2 Motion for TRO. (Court Reporter: Digital Recording) To order a copy of this Digital Recording, p to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah by email at deborah_scalfani@mad.uscourts.gov.(Attorneys present: Pineiro,Scott,Others/Farquhar,Pierson) (Castles, M

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(Entered: 07/02/2018)

7/03/2018 19 District Judge Timothy S. Hillman: ORDER entered. CONTINUATION OF TEMPORARY RESTRAINING ORDER Sandra) (Entered: 07/03/2018)

7/03/2018 20

District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 15 Motion for Leave to Appear Pro Hac Added Kira Romero−Craft and Natasha Lycia Ora Bannan. Attorneys admitted Pro Hac Vice must register for elec filing if the attorney does not already have an ECF account in this district. To register go to the Court website a www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Regi Form. (Burgos, Sandra) (Entered: 07/03/2018)

7/03/2018 21

District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 16 Motion for Leave to Appear Pro Hac Added Jose Luis Perez. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does no already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Sele Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Burgos, Sandra) (Ente 07/03/2018)

7/05/2018 22

Transcript of Telephone Conference held on July 2, 2018, before Judge Timothy S. Hillman. The Transcript may be pu through Judy Bond at judy@bondcourtreporting.com, viewed at the public terminal, or viewed through PACER after it released. Court Reporter Name and Contact Information: No Reporter Used. Digital Recording transcribed by Judy Bo Redaction Request due 7/26/2018. Redacted Transcript Deadline set for 8/6/2018. Release of Transcript Restriction set 10/3/2018. (Scalfani, Deborah) (Entered: 07/05/2018)

7/05/2018 23 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−ca matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/05/2018)

7/05/2018 24

MOTION for Leave to Appear Pro Hac Vice for admission of Brett Natarelli, Craig J. De Recat, and Justin Jones Rodr Filing fee: $ 300, receipt number 0101−7217630 by Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus Lopez Lauriano Munoz, Denise Nieves, Iris Otero, Rosa Rivera, Aracelis Velez Cruz. (Attachments: # 1 Exhibit A − affidavit Natarelli, # 2 Exhibit B − affidavit of Craig J. de Recat, # 3 Exhibit C − affidavit of Justin Jones Rodriguez)(Scott, Rob Modified on 7/6/2018 (Burgos, Sandra). (Entered: 07/05/2018)

7/06/2018 25

District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 24 Motion for Leave to Appear Pro Hac Added Brett Natarelli, Craig J. De Recat and Justin Jones Rodriguez. Attorneys admitted Pro Hac Vice must registe electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Jones, Sherry) (Entered: 07/06/2018)

7/06/2018 26 MOTION for Leave to Appear Pro Hac Vice for admission of Eve L. Torres Filing fee: $ 100, receipt number 0101−72 by Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus Lopez, Angel Lauriano Munoz, Denise Nieves, Iris Ote Rivera, Aracelis Velez Cruz. (Attachments: # 1 Exhibit A − affidavit of Eve L. Torres)(Scott, Robert) (Entered: 07/06/

7/09/2018 27

District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 26 Motion for Leave to Appear Pro Hac Added Eve L. Torres. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Jones, Sherry) (Entere 07/09/2018)

7/12/2018 28 AMENDED COMPLAINT −− First Amended Class Action Complaint Seeking Injunctive and Declaratory Relief agai Thomas Van Essen, Federal Emergency Management Agency, Alejandro De La Campa, William Brock Long, filed by Bethzaida Crespo Vicente, Iris Otero, Elizabeth Delgado Santos, Rafael Ocasio Barreto.(Jones Rodriguez, Justin) (Ente 07/12/2018)

7/13/2018 29

SUMMONS Returned Executed as to US Attorney by Angel Lauriano Munoz, Denise Nieves, Elizabeth Delgado Sant Bethzaida Crespo Vicente, Aracelis Velez Cruz, Rafael Ocasio Barreto, Iris Otero, Alian Asencio, Yaritza De Jesus Lo Rosa Rivera. Alejandro De La Campa served on 7/10/2018, answer due 9/10/2018; Federal Emergency Management A served on 7/10/2018, answer due 9/10/2018; William Brock Long served on 7/10/2018, answer due 9/10/2018; Thoma Essen served on 7/10/2018, answer due 9/10/2018. (de Recat, Craig) (Entered: 07/13/2018)

7/13/2018 30 MOTION for Leave to File Excess Pages by Alejandro De La Campa, Federal Emergency Management Agency, Willi Brock Long, Thomas Van Essen.(Farquhar, Rayford) (Entered: 07/13/2018)

7/13/2018 31 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 30 Motion for Leave to File Excess Page Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of ord the caption of the document. (Jones, Sherry) (Entered: 07/13/2018)

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7/13/2018 32 Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Alejandro D Campa, Federal Emergency Management Agency, William Brock Long, Thomas Van Essen. (Attachments: # 1 Exhibi 1)(Farquhar, Rayford) (Entered: 07/13/2018)

7/18/2018 33 MOTION for Leave to File Excess Pages by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barr Otero.(Jones Rodriguez, Justin) (Entered: 07/18/2018)

7/18/2018 34 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 33 Motion for Leave to File Excess Page Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of ord the caption of the document. (Jones, Sherry) (Entered: 07/18/2018)

7/18/2018 35 REPLY to Response to 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Be Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barreto, Iris Otero. (de Recat, Craig) (Entered: 07/18/2018)

7/18/2018 36 DECLARATION re 35 Reply to Response to Motion by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Barreto, Iris Otero. (Torres, Eve) (Entered: 07/18/2018)

7/19/2018 37 MOTION to Correct a Misstatement in Their Opposition to Plaintiffs' Request for a Continued Temporary Restraining and/or Preliminary Injunction by Alejandro De La Campa, Federal Emergency Management Agency, William Brock L Thomas Van Essen.(Farquhar, Rayford) Modified on 7/19/2018 (Jones, Sherry). (Entered: 07/19/2018)

7/19/2018 38 District Judge Timothy S. Hillman: ORDER entered. SECOND CONTINUATION OF TEMPORARY RESTRAININ ORDER.(Castles, Martin) (Entered: 07/19/2018)

7/19/2018 39 ELECTRONIC NOTICE Setting Hearing on Motion 2 MOTION for Preliminary Injunction : Motion Hearing set for 8 at 10:00 AM in Courtroom 2 − Worcester before District Judge Timothy S. Hillman. (Castles, Martin) (Entered: 07/19/

7/20/2018 40 NOTICE of Appearance by Danielle Wolfson Young on behalf of Alejandro De La Campa, Federal Emergency Manag Agency, William Brock Long, Thomas Van Essen (Young, Danielle) (Entered: 07/20/2018)

7/20/2018 41 MOTION to Correct 35 Reply to Response to Motion −− Motion to Correct a Misstatement in Reply by Bethzaida Cre Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barreto, Iris Otero.(Torres, Eve) (Entered: 07/20/2018)

7/23/2018 42 NOTICE by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barreto, Iris Otero re 38 Temporary Restraining Order (Torres, Eve) (Entered: 07/23/2018)

7/27/2018 43

DECLARATION re 38 Temporary Restraining Order, 42 Notice (Other) by Bethzaida Crespo Vicente, Elizabeth Delg Santos, Rafael Ocasio Barreto, Iris Otero. (Attachments: # 1 Exhibit D to the Declaration of Eve L. Torres Regarding Additional Evidence for the Hearing on Emergency Motion for a Temporary Restraining Order or Preliminary Injuncti Declaratory Relief, # 2 Exhibit E to the Declaration of Eve L. Torres Regarding Additional Evidence for the Hearing o Emergency Motion for a Temporary Restraining Order or Preliminary Injunction and Declaratory Relief, # 3 Exhibit F Declaration of Eve L. Torres Regarding Additional Evidence for the Hearing on Emergency Motion for a Temporary Restraining Order or Preliminary Injunction and Declaratory Relief)(Torres, Eve) (Entered: 07/27/2018)

7/27/2018 44 DECLARATION re 42 Notice (Other) by Alian Asencio, Bethzaida Crespo Vicente, Yaritza De Jesus Lopez, Elizabeth Delgado Santos, Angel Lauriano Munoz, Denise Nieves, Rafael Ocasio Barreto, Iris Otero, Rosa Rivera, Aracelis Vele (Attachments: # 1 Exhibit G, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K)(Bannan, Natasha) (Entered: 07/

8/01/2018 45

Electronic Clerk's Notes for proceedings held before District Judge Timothy S. Hillman: Motion Hearing held on 8/1/2 MOTION Preliminary Injunction filed by Alian Asencio, Case called, Counsel appear for motion hearing, Court hears arguments of counsel, Court rules taking under advisement 2 Motion for Preliminary Injunction, Court extends TRO un 8/31/18, Order to issue, (Court Reporter: Valerie OHara at vaohara@gmail.com/Digital)(Attorneys present: Pineiro,Scott,Bannan,Rodriguez,de Recat/Young,Farquhar) (Castles, Martin) (Entered: 08/01/2018)

8/01/2018 46 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 37 Motion to correct aand granting 41 M Correct. (Castles, Martin) (Entered: 08/01/2018)

8/02/2018 47 Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction CORRECTED OPPO filed by Alejandro De La Campa, Federal Emergency Management Agency, William Brock Long, Thomas Van Essen. (Attachments: # 1 Exhibit 1)(Farquhar, Rayford) (Entered: 08/02/2018)

8/03/2018 48 Transcript of Motion Hearing held on August 1, 2018, before Judge Timothy S. Hillman. The Transcript may be purch through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporte and Contact Information: Valerie OHara at vaohara@gmail.com Redaction Request due 8/24/2018. Redacted Transcrip Deadline set for 9/4/2018. Release of Transcript Restriction set for 11/1/2018. (Scalfani, Deborah) (Entered: 08/03/201

8/03/2018 49 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−ca matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 08/03/2018)

Case: 4:18-cv-40111-TSH As of: 02/13/2019 08:06 PM EST 13 of 14

8/03/2018 50 NOTICE by Alejandro De La Campa, Federal Emergency Management Agency, William Brock Long, Thomas Van E Supplemental Authority (Young, Danielle) (Entered: 08/03/2018)

8/03/2018 51 REPLY to Response to 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction CORRECT REPLY filed by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barreto, Iris Otero. (de Recat, Cra (Entered: 08/03/2018)

8/09/2018 52 MOTION for Protective Order , MOTION to Seal ( Responses due by 8/23/2018) by Alejandro De La Campa, Federal Emergency Management Agency, William Brock Long, Thomas Van Essen. (Attachments: # 1 Text of Proposed Order)(Young, Danielle) (Entered: 08/09/2018)

8/09/2018 53 DOCUMENT HAD TYPO'S COUNSEL REFILED THE DOCUMENT, SEE ENTRY #54 FOR CORRECTED DOCU Opposition re 52 MOTION for Protective Order MOTION to Seal filed by Alian Asencio, Bethzaida Crespo Vicente, Y De Jesus Lopez, Elizabeth Delgado Santos, Angel Lauriano Munoz, Denise Nieves, Rafael Ocasio Barreto, Iris Otero, Rivera, Aracelis Velez Cruz. (Scott, Robert) Modified on 8/10/2018 (Jones, Sherry). (Entered: 08/09/2018)

8/10/2018 54 Opposition re 52 MOTION for Protective Order MOTION to Seal , corrected, filed by Alian Asencio, Bethzaida Cresp Vicente, Yaritza De Jesus Lopez, Elizabeth Delgado Santos, Angel Lauriano Munoz, Denise Nieves, Rafael Ocasio Ba Otero, Rosa Rivera, Aracelis Velez Cruz. (Attachments: # 1 Exhibit 1 email of Aug. 8 2018, # 2 Exhibit 2 emails of Au 2018, # 3 Exhibit emails of Aug 9 2018)(Scott, Robert) (Entered: 08/10/2018)

8/10/2018 55 NOTICE of Appearance by Kari E. D'Ottavio on behalf of Alejandro De La Campa, Federal Emergency Management William Brock Long, Thomas Van Essen (D'Ottavio, Kari) (Entered: 08/10/2018)

8/10/2018 56 Supplemental MEMORANDUM in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Prelimi Injunction filed by Alejandro De La Campa, Federal Emergency Management Agency, William Brock Long, Thomas Essen. (Attachments: # 1 Affidavit)(Young, Danielle) (Entered: 08/10/2018)

8/10/2018 57 Supplemental MEMORANDUM in Support re 2 MOTION for Temporary Restraining Order MOTION for Preliminar Injunction filed by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barreto, Iris Otero. (Attachme Affidavit of Craig J. de Recat in Support, # 2 Exhibit s K − V, # 3 Exhibit s W − Z)(Jones Rodriguez, Justin) (Entered: 08/10/2018)

8/10/2018 58 Response by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocasio Barreto, Iris Otero to 50 Notice (Oth (Jones Rodriguez, Justin) (Entered: 08/10/2018)

8/15/2018 59

District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 52 Motion for Protective Order and gran Motion to Seal. The Court will issue the protective order, as proposed, forthwith. The Defendants shall serve copies of materials on Plaintiffs' counsel by the close of business on Friday, August 17th. After receiving the materials, Plaintiffs necessary, file a request for further briefing. Plaintiffs shall file any such request by close of business on Tuesday, Aug Defendants need not file the materials with the Court, however, if the materials are included in any future filings they s filed under seal. Additionally, if the parties have any interest in mediating this case with a magistrate judge assigned to Court, they can jointly file a request for ADR with my Courtroom Clerk, Martin Castles, on or before August 24, 2018 (Castles, Martin) (Entered: 08/15/2018)

8/15/2018 60 District Judge Timothy S. Hillman: ORDER entered. PRIVACY ACT PROTECTIVE ORDER(Castles, Martin) (Enter 08/15/2018)

8/21/2018 61 MOTION for Leave to File a Supplemental Brief by Bethzaida Crespo Vicente, Elizabeth Delgado Santos, Rafael Ocas Barreto, Iris Otero.(Jones Rodriguez, Justin) (Entered: 08/21/2018)

8/21/2018 62 Opposition re 61 MOTION for Leave to File a Supplemental Brief filed by Alejandro De La Campa, Federal Emergenc Management Agency, William Brock Long, Thomas Van Essen. (Young, Danielle) (Entered: 08/21/2018)

8/22/2018 63 District Judge Timothy S. Hillman: ORDER entered MEMORIALIZING THE PREVIOUSLY GRANTED THIRD CONTINUATION OF TEMPORARY RESTRAINING ORDER(Castles, Martin) (Entered: 08/22/2018)

8/23/2018 64 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered denying 61 Motion for Leave to File. (Castles, Ma (Entered: 08/23/2018)

8/29/2018 65 MOTION to Dismiss by Alejandro De La Campa, Federal Emergency Management Agency, William Brock Long, Tho Van Essen.(Young, Danielle) (Entered: 08/29/2018)

8/29/2018 66 MEMORANDUM in Support re 65 MOTION to Dismiss filed by Alejandro De La Campa, Federal Emergency Manag Agency, William Brock Long, Thomas Van Essen. (Young, Danielle) (Entered: 08/29/2018)

8/30/2018 67 District Judge Timothy S. Hillman: ORDER entered denying 2 Motion for Preliminary Injunction. (Castles, Martin) (E 08/30/2018)

Case: 4:18-cv-40111-TSH As of: 02/13/2019 08:06 PM EST 14 of 14
9/20/2018 68 District Judge Timothy S. Hillman: ELECTRONIC ORDER entered granting 65 Motion to Dismiss. No opposition hav filed, the motion to dismiss is granted for the reasons stated in the Defendants' memorandum. (Castles, Martin) (Entere 09/20/2018)
9/20/2018 69 District Judge Timothy S. Hillman: ORDER entered. ORDER DISMISSING CASE.(Castles, Martin) (Entered: 09/20/

 
 Case 4:18-cv-40111-TSH Document 1 Filed 06/30/18 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALIAN ASENCIO, ARACELIS VELEZ

CIVIL ACTION NO.

CRUZ, DENISE NIEVES, YARITZA DE

JESUS LOPEZ, ROSA RIVERA, ANGEL CLASS ACTION COMPLAINT

LAURIANO MUÑOZ DE JESUS,

SEEKING INJUNCTIVE AND

BETHZAIDA CRESPO VICENTE, and IRIS DECLARATORY RELIEF

OTERO, on behalf of themselves and all

similarly situated individuals

ECF Case

Plaintiffs,

-against-

FEDERAL EMERGENCY MANAGEMENT AGENCY, WILLIAM BROCK LONG, THOMAS VAN ESSEN, and ALEJANDRO DE LA CAMPA,

Defendants.

1. Plaintiffs Alian Asencio, Aracelis Velez Cruz, Denise Nieves, Yaritza de Jesus
Lopez, Rosa Rivera, Angel Lauriano Muñoz de Jesus, Bethzaida Crespo Vicente, and Iris Otero (collectively, “Plaintiffs”), by and through their undersigned attorneys, bring this complaint against the Federal Emergency Management Agency (“FEMA”), William Brock Long, Thomas Van Essen, and Alejandro De La Campa, on behalf of themselves and all similarly situated individuals.
I. PRELIMINARY STATEMENT
2. This is an action to (a) hold unlawful and set aside certain agency actions of the
Federal Emergency Management Agency (“FEMA”), the federal agency charged by statute to care for Americans who are victims of natural disasters; and (b) compel FEMA to take other

Case 4:18-cv-40111-TSH Document 1 Filed 06/30/18 Page 2 of 29
action that it has unlawfully withheld or unreasonably delayed. Contrary to its charge, FEMA is planning to prematurely abort its assistance to thousands of Puerto Ricans displaced by Hurricane Maria. FEMA has announced that on June 30, 2018, it will arbitrarily, capriciously, and unlawfully discontinue its Transitional Shelter Assistance (“TSA”), which provides direct funding to hotels and motels, which serve as shelters for thousands of individuals and families who were forced to evacuate the island of Puerto Rico because the hurricane severely damaged or destroyed their homes. FEMA’s refusal to extend TSA is without any plan for transitioning into longer-term housing some 2,000 individuals who have already faced severe trauma and lost most, if not all, of their belongings, their homes and their jobs. For Plaintiffs and many other TSA evacuees, especially the poor, elderly and sick, returning to their homes (or what is left of their homes) in Puerto Rico is not a viable option.
3. Through the TSA program, hotels and motels across the mainland United States
have become the temporary homes of these evacuees, who, as of June 30, 2018, will become homeless. By discontinuing the TSA program, FEMA is knowingly withholding desperately needed support to these marginalized American citizens, putting TSA evacuees at risk of homelessness and other irreparable injury. Indeed, the evacuees will be ripped from their homes yet again—not by a natural disaster, but by a manmade one created by the federal agency charged with disaster relief.
4. This action, therefore, is brought by eight named plaintiffs, on their own behalf
and on behalf of a class of people similarly situated, seeking an order that FEMA obey the laws put into place to address the problems associated with disasters such as Hurricane Maria, and continue FEMA’s TSA program until all eligible individuals have either received temporary housing assistance or found alternative, permanent housing.
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5. Plaintiffs seek a judicial declaration and injunctive relief that under the Due
Process Clause of the Fifth Amendment to the United States Constitution and Section 706 of the Administrative Procedures Act, each of which independently provides Plaintiffs with a right of action against FEMA and the individual defendants for each violation. Defendants’ conduct violates both the substantive and procedural components of the Due Process Clause and at least three provisions of the APA.
6. First, Section 706(2)(B) of the APA requires courts to hold unlawful and set aside
any agency action that is contrary to constitutional right, power, privilege or immunity. Because Defendants’ conduct violates due process, the Court must also hold such action unlawful and set it aside.
7. Second, Section 706(2)(A) of the APA requires courts to hold unlawful and set
aside any agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Defendants’ decision to terminate TSA to thousands of evacuees without any plan to transition evacuees into longer-term housing is arbitrary and capricious. It simply has no basis in fact.
8. Third, Section 706(1) of the APA requires courts to compel agency action where
such action has been unlawfully withheld or unreasonably delayed. Defendants have decided to terminate TSA on the one hand, while unreasonably delaying activation of any replacement housing assistance on the other hand. They should be compelled to continue TSA until FEMA provides eligible evacuees sufficient Temporary Housing Assistance and implements an adequate replacement solution, or until Plaintiffs and class members have each been relocated into alternate housing.
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9. Plaintiffs seek such relief because it appears that, absent judicial oversight, the
victimization of evacuees will continue. Plaintiffs also seek an order compelling FEMA to provide additional housing assistance to TSA evacuees.
II. JURISDICTION AND VENUE
10. This Court has subject matter jurisdiction in this action under 28 U.S.C. § 1331
(action arising under the laws of the United States), 28 U.S.C. § 1361 (action to compel officer or agency to perform duty owed to Plaintiff), and 5 U.S.C. §§ 701-706 (judicial review under APA). An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory relief, injunctive relief, and other relief against Defendants pursuant to 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706.
11. Venue in this Court is proper under 28 U.S.C. § 1391 because a substantial part of
the events or omissions giving rise to the claims asserted herein occurred in this District. III.
PARTIES A. INDIVIDUAL PLAINTIFFS
12. Plaintiff ALIAN ACENSIO is a 35-year-old woman from San Juan, Puerto Rico.
She relocated as a hurricane evacuee to Worcester, Massachusetts, in April 2018 with her spouse, Jose Rodriguez, who is 39 years old. Both reside in a hotel under the TSA program. Ms. Acensio and Mr. Rodriguez have no residence to return to in Puerto Rico. Their home was flooded, their windows broken, and as of the time of their evacuation, they still lacked electricity and running water. Ms. Acensio suffers from recurrent major depression, and Mr. Rodriguez suffers from schizophrenia and paranoia. Mr. Rodriguez was unable to access the medical
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services he needed in Puerto Rico and is seeking mental health and healthcare services in Massachusetts. They have no other family members with them or in Massachusetts, and if they are evicted from their temporary hotel room on June 30, 2018, they will be left homeless.
13. Plaintiff ARACELIS VELEZ CRUZ is a 46-year-old woman from Canovanas,
Puerto Rico. She relocated as a hurricane evacuee to Worcester, Massachusetts, in February 2018, where she currently resides in a hotel under the TSA program. She has no residence to return to in Puerto Rico as her home has flooded and remains without electricity or running water. Ms. Velez Cruz relocated as an evacuee due to her precarious living situation and the dearth of places to purchase food where she resided in Puerto Rico. Ms. Velez Cruz has no other family members in Massachusetts, and if she is evicted from her temporary hotel room on June 30, 2018, she will be left homeless.
14. Plaintiff DENISE NIEVES is a 48-year-old woman from Toa Baja, Puerto Rico.
She relocated as a hurricane evacuee to West Springfield, Massachusetts, in November 2017 with her son. Ms. Nieves and her son reside in a hotel under the TSA program. She has no residence to return to in Puerto Rico as her home has flooded and she was told by FEMA representatives that she would not receive any assistance to repair it. Her housing conditions became dangerous and she and her son were forced to leave their home. She stopped receiving income and used the remaining source of funds she had to purchase a ticket to Massachusetts. Ms. Nieves and her son both suffer from several medical conditions that make their pending homelessness even more dire. Her son, who was born prematurely, has on-going neurological dysfunctions, and suffers from Attention Deficit and Hyperactivity Disorder, as well as PostTraumatic Stress Disorder. Ms. Nieves suffers from pulmonary hypertension, which affects the flow of oxygen to both her lungs and heart. She and her son have sought out medical attention in
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Case 4:18-cv-40111-TSH Document 1 Filed 06/30/18 Page 6 of 29
Massachusetts. Ms. Nieves and her child have no other family members with them or in Massachusetts. Ms. Nieves does not own a vehicle. If they are evicted on June 30, 2018, from their temporary hotel room, they will be left homeless.
15. Plaintiff YARITZA DE JESUS LOPEZ is a 35-year-old woman from Caguas,
Puerto Rico. She relocated as a hurricane evacuee to West Springfield, Massachusetts, in February 2018 with her three children. Ms. de Jesus Lopez and her children reside in a hotel under the TSA program. She has no residence to return to in Puerto Rico as her home was completely destroyed from water and wind damage; the wind blew out the windows and the doors, water filled the home, and the roof was ripped off. Ms. de Jesus Lopez’s three children have serious asthma and sinus problems. Ms. de Jesus Lopez and her children have no other family members with them or in Massachusetts, and if they are evicted from their temporary hotel room on June 30, 2018, they will be left homeless.
16. Plaintiff ROSA RIVERA is a 57-year-old woman from San Juan, Puerto Rico.
She relocated as a hurricane evacuee to Worcester, Massachusetts, in November 2017 with her adult daughter, Neisha Paulino. Ms. Rivera and Ms. Pulino reside in a hotel under the TSA program. Ms. Rivera has no residence to return to in Puerto Rico as her home has flooded and remains without electricity or running water. Ms. Rivera continues to suffer from several medical conditions, and she receives medical attention in Massachusetts. If Ms. Rivera and her daughter are evicted from their temporary hotel room on June 30, 2018, they will be left homeless.
17. Plaintiff ANGEL LAURIANO MUÑOZ DE JESUS is a 69-year-old man who
self-evacuated from Bayamon, Puerto Rico, to central Florida in November 2017, where he currently resides in a hotel under the TSA program. Mr. Muñoz de Jesus suffers from panic
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attacks and anxiety and was under supervision and continual care by his psychiatrist, who had an office in Toa Bajo, Puerto Rico. His psychiatrist’s office was rendered uninhabitable after Hurricane Maria, leaving Mr. Muñoz de Jesus without the necessary medical care to supervise his medications and conditions. Mr. Muñoz de Jesus also suffers from emphysema, which requires breathing treatments, often several times a day. He experiences headaches from an untreated eye condition, which will require surgery, in addition to mental health conditions such as stress and depression from the inability to secure permanent housing; no options have been made available to him. Mr. Muñoz de Jesus’ home in Puerto Rico lost electricity requiring him, in addition to his medical needs, to seek relocation to Florida. Mr. Muñoz de Jesus is retired, elderly, and infirm and relies only on a Social Security stipend to pay for his living expenses. If he is evicted on June 30, 2018, from his temporary hotel room, he will become homeless.
18. Plaintiff BETHZAIDA CRESPO VICENTE is a 36-year-old woman who self-
evacuated from Dorado, Puerto Rico, with her three children and husband on November 16, 2017. Ms. Crespo Vicente and her family currently reside in a hotel under the TSA program in central Florida. Ms. Crespo Vicente had rented a home in Puerto Rico, which was completely destroyed by Hurricane Maria. As a result, she was forced to temporarily relocate to her motherin-law’s home, where nine people were living in a small house with no electricity. Ms. Crespo Vicente’s children could not attend school in Puerto Rico, which had been temporarily closed due to the impact of the hurricane. Ms. Crespo Vicente suffers from manic depressive disorder, anxiety and scoliosis, for which she is awaiting surgery in Florida. Ms. Crespo Vicente had to undergo emergency surgery in March 2018 to address a growth on her uterus. Since her recent surgery, she stopped receiving public assistance because her mail was not being accepted at the extended-stay hotel where she and her family currently reside. Ms. Crespo Vicente’s husband is
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working; however, they have not been able to earn sufficient income to pay the security deposit for an apartment or ensure they can adequately cover rental costs and transition into permanent housing. Ms. Crespo Vicente’s husband suffers from high blood pressure and stomach disorders, which require medical attention that he has sought in Florida. The Crespo Vicente family has no other available housing options, and if they are evicted from their temporary hotel room on June 30, 2018, they will be left homeless.
19. Plaintiff IRIS OTERO is a 39-year-old woman who self-evacuated from San Juan,
Puerto Rico, with her five children after Hurricane Maria devastated the island. Ms. Otero is a single mother who was living in public housing that was completely destroyed by the hurricane. Ms. Otero’s landlord would not repair her apartment or the public housing building in Puerto Rico, which became infested with rats as the front door to her apartment was blown away during the hurricane. Ms. Otero and her children currently reside in a hotel under the TSA program in central Florida. Ms. Otero’s three oldest children suffer from ADHD, a condition of diagnosed hyperactivity that requires ongoing psychological or psychiatric care and supervision. Her children’s schools in Puerto Rico were closed indefinitely. Three of Ms. Otero’s children have other learning disabilities, which makes it extremely difficult for her to relocate them again based on their educational needs and the level of care required for their growth and well-being. She has no assistance or support in Puerto Rico to help her re-establish herself and her children there, as her mother is elderly and suffers from several medical conditions. Ms. Otero has not received public assistance in Florida and cannot afford to move to more permanent housing. Ms. Otero feels desperate and scared and has suffered from insomnia and stress at the prospect of finding herself and her five children homeless. Ms. Otero and her children have no other
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Case 4:18-cv-40111-TSH Document 1 Filed 06/30/18 Page 9 of 29
available housing options, and if they are evicted from their temporary hotel room on June 30, 2018, they will be left homeless. B. CLASS PLAINTIFFS
20. Plaintiffs bring this action on their own behalf and on behalf of all those similarly
situated.
21. Plaintiffs seek to represent a class consisting of all persons who (a) as of
September 16, 2017, resided in Puerto Rico, declared to be a Federal Disaster Area due to Hurricane Maria; (b) have applied for and received TSA under the Stafford Act, pursuant to 42 U.S.C. § 5174(a) through (d) and the federal regulations promulgated thereunder; (c) are currently residing in TSA housing; (d) have not been able to secure alternative housing; and (e) will have their TSA discontinued as of June 30, 2018.
22. Each of the requirements of Federal Rule of Civil Procedure 23(a) is met. 23. Members of the class are so numerous that joinder of all members is
impracticable, and individual litigation by each would necessarily and substantially burden the operation of the judicial system and is prohibitive because the individual class members lack the knowledge, sophistication, and financial means to maintain individual actions. In addition, the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications establishing incompatible rules of law for the provision of disaster relief.
24. The number of class members can best be estimated from records in the control of
Defendants. They are believed to number in the thousands.
25. There is a well-defined community of interest in the questions of law and fact
involving the claims of the members of the class, in that FEMA has systemically applied the
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policies and practices challenged in this action to wrongfully and arbitrarily discontinue the TSA program under the Stafford Act before evacuees have secured alternative housing. There are common questions of law or fact.
26. The claims of the named plaintiffs are typical of the class members in that each
named plaintiff, due to the challenged policies and practices of FEMA: (a) has been displaced by Hurricane Maria and/or had their primary pre-disaster residence rendered uninhabitable; (b) is currently receiving TSA; and (c) will be displaced as of June 30, 2018 if FEMA discontinues TSA as it threatens to do.
27. The named plaintiffs will adequately and fairly represent and protect the interests
of the class because each named plaintiff has suffered the same or similar harm, and has the same or similar interest in redress of his/her rights as all other members of the class, and thus their interests overlap and do not conflict. The attorneys representing Plaintiffs, Hector E. Pineiro, Manatt, Phelps, & Phillips, LLP and LatinoJustice PRLDEF are experienced and capable litigators possessed of sufficient resources to adequately protect and represent the interests of the plaintiff class.
28. The requirements of Federal Rule of Civil Procedure 23(b)(2) are met in that the
regulations, practices, and procedures which are the subject of this lawsuit have been applied to the members of the class as a whole, and Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. A class action is the exclusive method by which the interests of all affected persons can be adequately protected.
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C. DEFENDANTS
29. Defendant Federal Emergency Management Agency was created in 1979 as a
result of the merging of several federal agencies that handled disaster-related responsibilities. FEMA is the federal agency designated by the President to administer the Temporary Housing Assistance (“THA”) program in accordance with the provisions of the Stafford Act and the federal regulations. As an agency of the federal government, FEMA’s actions are directed and carried out by other agencies and individuals. When used in this Complaint, the acronym “FEMA” shall be understood to refer not only to that agency, but to the Defendants listed below as well.
30. Defendant Willian Brock Long has been the Director of FEMA from June 20,
2017, through the present.
31. Defendant Thomas Van Essen is the FEMA Regional Director with administrative
responsibility for FEMA’s response to Hurricane Maria victims from Puerto Rico.
32. To coordinate the federal government’s efforts in response to a disaster, FEMA
recommends, and the President appoints, a Federal Coordinating Officer (“FCO”) for each state affected by a disaster. Defendant Alejandro De La Campa is the FCO with overall responsibility for FEMA’s response to Hurricane Maria in Puerto Rico.
IV. BASIS FOR RELIEF
33. This action and the relief requested are authorized under 28 U.S.C. § 1361, 28
U.S.C. § 2201, 28 U.S.C. § 2202, 28 U.S.C. § 2412(b), 42 U.S.C. §§ 5151, 5174, and 5 U.S.C. §§ 701 et seq. and the federal regulations promulgated thereunder, and the Due Process Clause of the Fifth Amendment to the United States Constitution.
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34. Under the Stafford Act, victims of a disaster are eligible for “financial or other
assistance” to meet their housing needs if they have been “displaced from their pre-disaster primary residences,” or their pre-disaster primary residences “are rendered uninhabitable as a result of damage caused by a major disaster.” 42 U.S.C. § 5174(b)(1).
35. 42 U.S.C. § 5170b(a)(3)(B), also known as the Stafford Act’s “public assistance”
provision, gives FEMA the power to perform “work or services essential to saving lives and protecting and preserving property or public health and safety, including . . . emergency shelter . . .” Under this authority, FEMA provides short-term Transitional Sheltering Assistance to disaster survivors who cannot return to their homes after congregate shelters have closed. In most cases, assistance is provided through direct payments to hotels and motels.
36. Under the Stafford Act, victims of a disaster are eligible for Temporary Housing
Assistance. THA is available for 18 months from the date that the President declared a disaster, but may be extended beyond that time. 44 C.F.R. § 206.110(e).
37. There are four forms of THA: (1) money for renting alternate housing (“Direct
Rental Assistance”), (2) rent-free occupancy in federally provided temporary housing, (3) money for repair of owner-occupied housing, and (4) money for replacement of owner-occupied housing. 42 U.S.C. § 5174(c); 44 C.F.R. § 206.117(b).
38. Applications for THA, and for the distribution of federal benefits pursuant to the
Stafford Act, must be done in “an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, or economic status.” 42 U.S.C. § 5151 0.(a).
39. On September 18, 2017, President Donald J. Trump declared a state of emergency
in the Commonwealth of Puerto Rico. President Trump’s declarations required FEMA to
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provide assistance under the Stafford Act. FEMA’s duty to provide assistance to victims of Hurricane Maria was mandatory, not discretionary.
V. SUMMARY OF FACTS A. HURRICANE MARIA RAVAGES PUERTO RICO
40. On September 20, 2017, Hurricane Maria hit the Caribbean island of Puerto Rico,
a territory of the United States with 3.4 million residents. The hurricane, classified as a Category 5 storm, was the worst natural disaster in Puerto Rico in over a hundred years, crippling the island’s infrastructure and causing an estimated $90 billion in damage.
41. Hurricane Maria devastated the electrical grid, causing a one-hundred percent
blackout in Puerto Rico and leaving hundreds of thousands of residents without power for months. Currently, ten months after the hurricane hit the island, there are still thousands of residents whose electricity has not yet been restored.
42. The hurricane severely, if not permanently, damaged tens of thousands of homes
and left nearly 75,000 Puerto Ricans without housing.
43. Many municipalities throughout the island were without potable water, or any
kind of running water, for weeks or months at a time, creating a public health hazard and concern for healthcare and nutritional assistance for all residents.
44. As a result of the lack of drinking water, combined with contaminated sources of
water that residents were told were safe for drinking, cases of leptospirosis, a potentially deadly bacterial disease that is water-borne, began to break out, putting at risk up to two million residents of Puerto Rico.
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45. The lack of electricity and infrastructure damage extended to healthcare facilities
and hospitals; most were running on generators, and some had no electricity even by generators. Residents were told not to seek out healthcare services unless it was an emergency, given the lack of medical equipment, personnel, facilities in a condition to tend to patients, and electricity.
46. It is estimated that the lack of available and accessible healthcare services,
electricity, food, and drinking water, in addition to widespread environmental and water contamination, dangerous housing conditions, broken infrastructure, damaged roads, and centralization of aid led to the deaths of approximately 4,645 Puerto Ricans, and perhaps thousands more.
47. Since the hurricane, Puerto Rico has seen a steep increase in the number of
suicides and mental health issues, including post-traumatic stress disorder.
48. As a result of the damage inflicted on Puerto Rico by Hurricane Maria, thousands
of Puerto Ricans became displaced and sought assistance on the mainland United States. It is estimated that between 100,000 and 300,000 Puerto Ricans left the island in the months following the hurricane to seek stable housing, employment and healthcare services.
49. Evacuees are spread out across the country, with the highest concentration in
Florida, particularly central Florida, as well as in the New York City metropolitan and tri-state area, Philadelphia, Chicago, Boston, Pennsylvania, and elsewhere throughout the United States.
50. Many evacuees are families or single parents with children, who have already
been enrolled in local schools. Some of the evacuees are elderly individuals who have arrived by themselves, with no family support or alternative housing options.
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B. FEMA PROVIDES TRANSITIONAL SHELTER ASSISTANCE TO EVACUEES
51. Among the displaced Puerto Rican evacuees, about 2,300 families began
receiving TSA from FEMA (hereinafter referred to as “TSA evacuees”), which included vouchers for extended stays in hotels around the country or in temporary housing facilities, although some were denied these benefits outright. Many of the households that initially received TSA were later cut off. Approximately 2,000 families continue to participate in the TSA program. Many thousands more left the island and likely found family members, friends, or acquaintances to stay with, even if temporarily. Others have ended up directly in homeless shelter systems throughout various states.
52. The TSA program was extended at least three times in order to avoid massive
secondary displacement of TSA evacuees, the overwhelming majority of whom have not been able to secure employment or long-term housing.
53. Prior to each extension, individuals and families participating in the TSA program
experienced anxiety and high levels of uncertainty about what would happen to them, given that most had not been successful in securing longer-term housing or employment. C. FEMA PLANS TO DISCONTINUE TSA ON JUNE 30, 2018, LEAVING
EVACUEES HOMELESS
54. The current TSA program for victims of Hurricane Maria is scheduled to
permanently expire on June 30, 2018, and FEMA has stated that it will not consider a further extension.
55. Hundreds of families are still in hotels under TSA, unsure where they will go on
June 30, 2018. Unable to secure alternative longer-term housing solutions, they will likely end up in homeless shelters, return to precarious housing and employment situations in Puerto Rico,
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or worse—living on the street. Families currently under the TSA program have requested an extension from FEMA.
56. There are approximately 2,000 TSA evacuees throughout the United States,
including Plaintiffs, who (a) were displaced from their homes by Hurricane Maria, (b) were given a voucher by FEMA to seek lodging in a hotel, (c) have remained in the TSA program until the present time with FEMA paying for their temporary hotel residences, (d) are still unable to either return to their previous homes or secure adequate alternative permanent housing, and (e) have reasonably relied, in making long-term housing plans, on the expectation that FEMA would continue to support them with the TSA program until they can either return to their homes or find other sustainable permanent housing.
57. While receiving federal assistance from FEMA, most TSA evacuees are ineligible
for local benefits and housing assistance. If TSA assistance to these hurricane victims is revoked, they will become homeless.
58. TSA evacuees have no other housing options open to them. They do not have
family members with whom they can stay, and they cannot return to Puerto Rico because there are no housing options for them. Most have lost their jobs and have no source of employment to go back to. In addition, many, including Plaintiffs, left Puerto Rico to seek healthcare for conditions they had that became aggravated as a result of lack of proper medical attention in Puerto Rico after the hurricane, and others have developed serious conditions or illnesses since their arrival. They need to remain in their current location, where they can continue to receive treatment and care for illnesses that include cancer, hypertension, diabetes, and asthma.
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59. If the remaining 2,000 TSA evacuees are evicted on June 30, 2018, and no local
or state government programs are immediately put in place to secure stable housing for them, they will become homeless and suffer irreparable injury.
60. Upon information and belief, Plaintiffs and putative class members have been
actively working to secure permanent or longer-term housing.
61. There are several ways in which FEMA can ensure that evacuees whose TSA is
terminated on June 30, 2018 are not left homeless.
62. FEMA has the ability to enter into an Inter-Agency Agreement (IAA) with the
Department of Housing and Urban Development (HUD) to initiate the Disaster Housing Assistance Program (DHAP), as they did after Hurricane Katrina and Hurricane Sandy. FEMA has represented that “DHAP is not necessary to house displaced disaster survivors” because “FEMA collaborates directly with HUD to find housing solutions for disaster survivors and is providing a variety of housing programs to adequately meet the unique needs of survivors that are more timely and effective than DHAP.” See FEMA Media Library (May 3, 2018), available at https://www.fema.gov/media-library/assets/images/163928 (last accessed June 29, 2018). FEMA has not kept this promise.
63. FEMA also has the ability to extend Direct Rental Assistance to all of the TSA
evacuees in order to help them secure longer-term housing options, including apartment leases that would allow them to contract housing for longer periods of time. As of now, and upon information and belief, this program has been extended to only approximately 83 TSA evacuees. Some evacuees have applied for THA, but have not received it.
64. FEMA has arbitrarily, capriciously, and unlawfully set the final TSA deadline for
June 30, 2018, without a plan for transitioning into longer-term or long-term housing some 2,000
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individuals who have faced severe trauma and who have lost most, if not all, of their belongings, their homes, and their jobs and who face healthcare challenges. Hotels have begun to receive notification that FEMA will no longer continue to pay for Plaintiffs and all TSA evacuees’ stays as of June 30, 2018, and many hotels have sent notices to the evacuees that they will be responsible for payment as of July 1, 2018. TSA evacuees and Plaintiffs are terrified at the possibility of being evicted with no alternative housing options available.
65. This litigation seeks to stop the eviction of TSA evacuees from their hotels
without any alternative housing.
66. FEMA has currently offered TSA assistance to victims of Hurricane Maria for
only the past nine months. However, after Hurricanes Katrina and Rita, FEMA extended TSA assistance for up to 26 months for evacuees. After that, FEMA provided additional assistance to the victims of Hurricanes Katrina and Rita through DHAP. FEMA has arbitrarily, capriciously, and unlawfully decided not to extend those same benefits to Plaintiffs and the putative class.
67. If evicted on June 30, 2018, as FEMA has stated its intent to do, Plaintiffs and the
putative class would suffer irreparable injury. D. DEFENDANTS’ CONDUCT HAS AND WILL PROXIMATELY CAUSE
IRREPARABLE HARM TO PLAINTIFFS, CLASS MEMBERS AND THE PUBLIC.
68. Defendants’ wrongful conduct has caused and will continue to cause Plaintiffs
and class members irreparable harm and injury in that, absent judicial relief, they will be wrongfully denied and delayed essential housing assistance that is necessary for their health and welfare.
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69. Without that housing assistance, Plaintiffs, class members, and their families will
be unable to remain continuously in affordable housing and will face the threat of probable homelessness.
70. Many Plaintiffs, class members, and their families have been forced to live in
intolerable, unsafe and unsanitary conditions as a result of Hurricane Maria and inadequate disaster relief, which has caused new medical conditions and complicated existing medical conditions. Without the requested relief, many others will also be forced to live in those same intolerable, unsafe and unsanitary conditions.
71. Many Plaintiffs, class members, and their families, have been displaced and
evacuated to distant places around the country, often by FEMA, and left without housing assistance and the means to return to their communities.
72. The lack of housing assistance for Plaintiffs, class members, and their families has
also served to split families and tear households apart.
73. Defendants’ knowing and continued failure and refusal to provide housing
assistance to thousands of individuals and families, who will be evicted from their current TSA shelters, is causing, and will likely continue to cause, further destitution, homelessness, hunger and stress. As a consequence, the risk of illness will be increased and their lives will be endangered.
74. Defendants’ intentional and wrongful conduct will also result in significant costs
to the public and waste of taxpayer funds. The loss of critically needed housing assistance harms those communities which have been destroyed by Hurricane Maria. The loss of housing assistance will harm many other communities throughout the country which have reached out to assist those who have been displaced and evacuated and now will face increased homelessness
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and, consequently, a higher incidence of persons with mental and emotional distress, illness, diseases, and substance abuse.
75. As a result of the federal government’s failure to fulfill its mandatory duties,
misconduct, state and local governments will be required to expend significant additional funds for the increased use of county health facilities to remedy these increased problems. E. PLAINTIFFS AND CLASS MEMBERS HAVE NO ADEQUATE REMEDY AT
LAW.
76. Plaintiffs, class members, and their families are without a plain, speedy or
adequate remedy at law, thereby rendering injunctive relief appropriate in that (a) damages cannot adequately compensate Plaintiffs and the class for the injuries suffered; (b) damages for the harm inflicted upon Plaintiffs and the class are difficult to ascertain; and (c) if the conduct complained of is not enjoined, a multiplicity of suits will result in that FEMA’s unlawful conduct is continuous and ongoing.
VI. CLAIMS FOR RELIEF
COUNT I: DEPRIVATION OF DUE PROCESS
U.S. Const. Amend. V (Defendants’ Conduct, Including Termination Of The TSA Program, Violates Plaintiffs
And Class Members’ Substantive And Procedural Due Process Rights.)
77. All prior paragraphs are incorporated as if fully set forth herein. 78. The Fifth Amendment to the United State Constitution provides that no person
shall “be deprived of life, liberty, or property, without due process of law[.]” U.S. Const. amend. V. The Due Process Clause has a substantive component that provides heightened protection against government interference with fundamental rights and liberty interests. The right to
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property, shelter and peaceful possession of one’s home are such fundamental rights and liberty interests. Violation of such rights by a government entity gives rise to a private right of action to redress such rights through declaratory, injunctive or other relief.
79. Plaintiffs Alian Acensio, Aracelis Velez, Denise Nieves, Yaritza de Jesus Lopez,
Rosa Rivera, Angel Lauriano Muñoz de Jesus, Bethzaida Crespo Vicente, and Iris Otero, and similarly situated members of the class, have property interests, including a right to retain possession, as tenants in FEMA subsidized hotel/motel units, which have become their homes. Plaintiffs have the right to continuing and orderly housing assistance, and as eligible disaster victims, they may qualify to receive alternative THA. They also have a fundamental right to shelter and peaceful possession of their homes. Defendants’ intentional conduct knowingly impinges on these rights.
80. The Due Process Clause of the Fifth Amendment to the United States Constitution
also has a procedural component, prohibiting Defendants from depriving Plaintiffs and similarly situated members of the class of their property interests without adequate and timely notice of the type(s) of THA for which they qualify or may qualify and appropriate procedures for determining their eligibility for and obtaining such assistance prior to FEMA’s termination of the TSA Program.
81. FEMA has failed to provide Plaintiffs and similarly situated members of the class,
prior to terminating the TSA Program, with proper notice, information and procedures for determining their eligibility or continuing eligibility for THA, including the programs mentioned above, so that continuing assistance is assured.
82. FEMA’s failure to provide Plaintiffs and similarly situated members of the class,
prior to terminating the TSA Program, with proper information and procedures regarding
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eligibility for alternative and continuing THA prevents or frustrates Plaintiffs and similarly situated members of their class in obtaining alternative THA, resulting in homelessness and inadequate housing.
83. This amounts to a deprivation of a property interest without notice and due
process.
84. As a result, Defendants have violated the rights of Plaintiffs Alian Acensio,
Aracelis Velez, Denise Nieves, Yaritza de Jesus Lopez, Rosa Rivera, Angel Lauriano Muñoz de Jesus, Bethzaida Crespo Vicente, and Iris Otero, and similarly situated members of the class, under Due Process of law as guaranteed by the Fifth Amendment to the United States Constitution.
85. Plaintiffs are entitled to a judicial declaration that (a) Plaintiffs have a right to stay
in possession of their current shelter; and (b) Defendants’ termination of the TSA Program as described above violates Plaintiffs’ and class members’ constitutional rights. Plaintiffs are further entitled to injunctive relief restraining and/or enjoining Defendants from terminating TSA without the process prayed for below.
COUNT II: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 706(2)(B) (Defendants’ Conduct Should Be Declared Unlawful And/Or Set Aside Because It Is
Contrary to Constitutional Right, Power, Privilege, Or Immunity.)
86. All prior paragraphs are incorporated as if fully set forth herein. 87. The APA empowers the Court to “hold unlawful and set aside agency action,
findings, and conclusions” that are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). In addition, this Court has authority under 28 U.S.C. § 1331
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and its traditional powers of equity to declare invalid and enjoin agency action that violates the Constitution.
88. Where a Complaint contends that agency action offends the Constitution, and for
that reason should be enjoined, the Court does not afford deference to the agency, but instead reviews the constitutional issues independently.
89. As detailed above, Defendants’ conduct violates Plaintiffs’ substantive and
procedural due process rights, including, without limitation, by depriving Plaintiffs of their fundamental right to shelter and peaceful possession of their homes; and doing so without constitutional safeguards, including, without limitation, proper notice and an opportunity to be heard.
90. Plaintiffs are entitled to a declaratory judgment that Defendants’ termination of
the TSA Program as described above is unlawful and should be set aside.
COUNT III: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 706(2)(A) (Defendants’ Conduct Should Be Declared Unlawful And/Or Set Aside Because It Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With
Law.)
91. All prior paragraphs are incorporated as if fully set forth herein. 92. The APA requires courts to “hold unlawful and set aside” agency action that is,
among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if it is not the product of reasoned decision making. This means, among other things, that an agency must provide an adequate evidentiary basis for its action and consider all important aspects of the problem before it.
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93. Defendants’ decision to terminate the TSA Program on June 30, 2018, long before
Puerto Rico has recovered from Hurricane Maria, and before TSA evacuees are able to apply for and secure THA, or alternative housing, is being made without any plan to assist TSA evacuees in securing housing. This decision is without reason and is arbitrary and capricious.
94. Defendants’ decision to terminate the TSA on June 30, 2018, violates the APA’s
prohibition against “arbitrary and capricious” agency action. FEMA’s stated purpose for terminating this support for the class members is that the agency does not think DHAP is needed. This is contrary to the stark facts and the reality faced by the Puerto Rican victims of Hurricane Maria currently relying on FEMA assistance to survive and avoid homelessness. The stated purpose of terminating the program is not borne out by the facts, and is pretext for other unstated and ulterior purposes.
95. FEMA has given inadequate consideration, if any, to the viability of possible
alternatives for TSA evacuees, including Direct Rental Assistance, upon termination of their short-term housing benefits.
96. Plaintiffs and class members have suffered a legal wrong. Defendants’ violation
has caused and will continue to cause ongoing, irreparable harm to Plaintiffs and class members who have been adversely affected and aggrieved by FEMA’s arbitrary and capricious conduct.
97. An actual controversy exists between Plaintiffs and Defendants regarding whether
Defendants’ termination of the TSA Program violates Section 706(2)(A) of the APA.
98. Plaintiffs are entitled to a judicial declaration that Defendants’ termination of the
TSA Program as described above is unlawful and should be set aside.
COUNT IV: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 706(1)
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(Defendants Should Be Compelled To Provide The Relief They Have Unlawfully Withheld Or Unreasonably Delayed.)
99. All prior paragraphs are incorporated as if fully set forth herein. 100. The APA requires courts to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(2)(A). As detailed above, Defendants have arbitrarily and capriciously decided to terminate benefits to TSA evacuees without any plan in place to transition them into longer-term housing.
101. Defendants’ refusal to activate DHAP or other relief (as they are obligated to do)
before terminating benefits under the Transitional Shelter Assistance Program constitutes an unlawful withholding and/or an unreasonable delay of agency action—particularly in light of FEMA’s concurrent decision to evict Plaintiffs and class members from their homes on June 30, 2018.
102. FEMA has elected to evict Plaintiffs, class members, and their families from their
temporary homes, while simultaneously withholding benefits that FEMA has historically provided in similar situations, including after Hurricanes Katrina and Rita, to ensure that the termination of TSA does not result in homelessness or worse.
103. Plaintiffs are entitled to a permanent injunction restraining and/or enjoining
Defendants from terminating TSA until Plaintiffs and class members have received sufficient THA to transition to longer-term housing; or Defendants implement an adequate replacement solution. Plaintiffs are further entitled to a permanent injunction compelling Defendants to accept and process all applications for THA from TSA evacuees for a reasonable period of time, and to notify applicants and class members concerning all forms of THA available to them and the criteria and conditions applicable to such assistance.
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COUNT V: DECLARATORY JUDGMENT
28 U.S.C. § 2201
104. All prior paragraphs are incorporated as if fully set forth herein. 105. The Declaratory Judgment Act, 28 U.S.C. § 2201, allows the Court to “declare the
rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”
106. Plaintiffs are entitled to a declaration of their rights. Plaintiffs have a property
interest in their current temporary shelter and are entitled to additional housing assistance under the Stafford Act.
107. Plaintiffs are further entitled to a declaration that (a) Defendants’ termination of
the TSA Program as described above constitutes agency action that is unlawful and should be set aside under the Administrative Procedure Act; and that violates Plaintiffs and Class Members’ constitutional rights; and (b) Defendants have unlawfully withheld and unreasonably delayed activation of any assistance or program to replace TSA.
VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs and Class Members respectfully request that this this Court: A. Issue a declaratory judgment that (1) Plaintiffs have a right to retain possession of their current shelter and are entitled to additional assistance under the Stafford Act; (2) Defendants’ termination of the Transitional Shelter Assistance Program as described above (a) constitutes agency action that is unlawful and should be set aside under the Administrative Procedure Act; and (b) violates Plaintiffs and Class Members’ constitutional rights; and (3) Defendants have unlawfully
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withheld and unreasonably delayed activation of any Temporary Housing Assistance or program to replace the Transitional Shelter Assistance Program; B. Issue a preliminary injunction restraining and/or enjoining Defendants from terminating the Transitional Shelter Assistance Program pending the outcome of this litigation; C. Issue a permanent injunction restraining and/or enjoining Defendants from terminating the Transitional Shelter Assistance Program until either (1) Plaintiffs and Class Members have received sufficient Temporary Housing Assistance to transition to longer-term housing; or (2) Defendants implement a long-term replacement solution such as DHAP or other program that ensures continuing assistance to beneficiaries; D. Issue a permanent injunction requiring Defendants to: (1) continue to accept and process all applications for THA from TSA evacuees by telephone and online for a reasonable period of time following issuance of injunctive relief to enable appropriate application by the class of people unlawfully excluded or discouraged from applying for THA; and (2) notify applicants and class members concerning all forms of temporary assistance available to them and the criteria and conditions applicable to such assistance; and E. Award such further relief as the Court deems appropriate. Dated: Worcester, Massachusetts. June 30, 2018
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Respectfully submitted,
By:/s/: Hector E. Pineiro Hector E. Pineiro#555315 Robert A. Scott # 648740 HECTOR E. PINEIRO LAW OFFICES, P.C. 807 Main Street Worcester, MA 01610 (508) 770-0600
MANATT, PHELPS & PHILLIPS, LLP Craig J. de Recat* (CA Bar No. 105567) Justin Jones Rodriguez* (CA Bar No. 279080) Eve L. Torres* (CA Bar No. 303651) 11355 West Olympic Boulevard Los Angeles, California 90064 (310) 312-4000
Brett Natarelli* (IL Bar No. 6297280) 20 N. Clark Street Suite 3300 Chicago, IL 60602 (312) 626-1813
LatinoJustice PRLDEF Jose Perez* (NY Bar No. 2026649) Deputy General Counsel Natasha Bannan* (NY Bar No. 5021167) Associate Counsel 99 Hudson Street 14th Floor New York, New York 10013 (212) 219-3360
Kira Romero-Craft* (FL Bar No. 49927) Managing Attorney, Southeast Office 523 West Colonial Drive Orlando, Florida 32804 (321) 418-6354
*Pro Hac Vice application forthcoming
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Case 4:18-cv-40111-TSH Document 1 Filed 06/30/18 Page 29 of 29 Attorneys for Plaintiffs ALIAN ACENSIO, ARACELIS VELEZ CRUZ, DENISE NIEVES, YARITZA DE JESUS LOPEZ, ROSA RIVERA, ANGEL LAURIANO MUÑOZ DE JESUS, BETHZAIDA CRESPO VICENTE, and IRIS OTERO on behalf of themselves and all similarly situated individuals
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 Case 4:18-cv-40111-TSH Document 19 Filed 07/03/18 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

______________________________________________________

)

ALIAN ASENCIO, ARACELIS VELEZ CRUZ,

)

DENISE NIEVES, YARITZA DE JESUS LOPEZ,

)

ROSA RIVERA, ANGEL LAURIANO MUÑOZ DE JESUS, )

BETHZAIDA CRESPO VICENTE, and IRIS OTERO,

)

on behalf of themselves and all similarly situated individuals, )

Plaintiffs,

)

)

v.

)

)

)

FEDERAL EMERGENCY MANAGEMENT AGENCY,

)

WILLIAM BROCK LONG, THOMAS VAN ESSEN,

)

and ALEJANDRO DE LA CAMPA,

)

Defendants,

)

______________________________________________________)

CIV. NO. 18-40111-TSH

CONTINUATION OF TEMPORARY RESTRAINING ORDER Background
The Plaintiffs are all individuals who evacuated Puerto Rico in the aftermath of Hurricane Maria, which struck the island on September 20, 2018 causing catastrophic damage. The Federal Emergency Management Agency (“FEMA”) has been providing assistance to thousands of residents of Puerto Rico displaced by Maria, including the named Plaintiffs. In May, FEMA announced that as of June 30, 2018, it would discontinue Transitional Shelter Assistance (“TSA”) for such evacuees. 1 The Plaintiffs have filed suit against the Defendants seeking to prevent the termination of benefits under the TSA program for themselves and other similarly situated persons. They have asserted claims for relief for Deprivation of their Fifth

1 In simple terms, the TSA program provides direct funding to hotels and motels, which serve as shelters for individuals and families who are forced to evacuate their damaged or destroyed homes due to a natural disaster.

Case 4:18-cv-40111-TSH Document 19 Filed 07/03/18 Page 2 of 4
Amendment Due Process Rights (Count I), and Violation of the Administrative Procedure Act, 5
U.S.C. §§ 706(2)(A) and (B), 5 U.S. C. § 706(1)(Counts II--IV). Plaintiffs also seek a
Declaratory Judgment (Count V).
On Saturday, June 30, 2018, at 5:24 pm, Plaintiffs filed their Complaint. Nearly an hour
later, they filed Plaintiffs’ Emergency Motion For A Temporary Restraining Order Or
Preliminary Injunction and Declaratory Relief (Docket No. 2), seeking an order preventing the
Defendants from terminating their benefits under the TSA program. Among other relief,
Plaintiffs also requested that the Defendants be ordered to notify all hotels, motels or other
facilities which have been providing housing for Hurricane Maria evacuees that any prior notices
of termination have been immediately withdrawn and revoked.
After an emergency hearing held via telephone, Judge Sorokin of this Court entered the
following Temporary Restraining Order (“TRO”):
The standard for issuance of an injunction is the familiar four part test. The irreparable harm to the plaintiffs is obvious and overwhelming tomorrow morning they will be evicted and homeless since by definition each plaintiff’s home was rendered uninhabitable by the hurricane in Puerto Rico, a determination previously made by the defendants. The public interest on balance favors the plaintiffs both in terms of their personal interests and considering the specter of many sick individuals without homes of their own being rendered homeless with the resulting drain on other public resources in addition to the possible human consequences. The substantially closer question is whether Plaintiffs have established a likelihood of success on the merits of one or more of their legal claims. The Plaintiffs in their papers and at the hearing have articulated, at least, claims that they are entitled to (1) reasonable notice of the termination of the temporary housing assistance; (2) assistance as long as they remain eligible; and (3) assistance in transition to other housing. In addition, they assert that FEMA in prior roughly equivalent disasters has extended the temporary housing assistance substantially longer than in the present disaster. On the record before the Court, which is admittedly limited in that the government has had only the most limited opportunity to respond, the Plaintiffs have demonstrated a sufficient likelihood of success to warrant an limited temporary restraining order under the totality of the circumstances and the governing law. Specifically, the affidavits from counsel show deficiencies in notice and transition assistance. Whether that evidentiary showing prevails on a fuller record is not now necessary to decide. Accordingly,
2

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the Court (1) ENJOINS the Defendants and their agents from terminating the Temporary Housing Assistance program which provides the payment for shelter for the plaintiffs (including the class) until at least midnight July 3, 2018 (i.e. enabling Plaintiffs and the class to stay until checkout time on July 4, 2018); (2) ORDERS Defendants and their agents to provide notice and take whatever action is necessary to extend the assistance until the aforementioned deadline; and (3) SCHEDULES a telephone hearing on this matter before Judge Hillman on Monday July 2, 2018 at 12:45 p.m. This ruling is WITHOUT PREJUDICE to any rulings by Judge Hillman. At the hearing before Judge Hillman counsel for plaintiffs ought be prepared to address with more specificity, inter alia, the specific nature and basis for the right to notice, the nature and basis of the right to ongoing housing assistance, the nature and basis for the right to transition assistance, and the legal significance, if any, of the different durations of housing assistance programs. Counsel for the government ought be prepared to address, inter alia, (on Monday or such further time as requested by the government) the lack of basis for the foregoing issues. Nothing in this outline limits or precludes the parties from raising issues fairly within the pleadings or appropriate defenses … .
See Docket Entry No. 10. The Court held a further hearing on Plaintiffs’ motion on July 2, 2018. At that hearing,
the parties informed the Court that the Defendants had agreed to continue the TSA program for
the Plaintiffs through July 5, 2018, after which time Plaintiffs’ and other evacuees’ benefits
would terminate in accordance with the Defendants’ prior termination notice.
Discussion
At the hearing, Plaintiffs requested that the Court extend the TRO for thirty (30) days to
permit the Defendants to file a response to their motion and for the Court to hold an evidentiary
hearing, with testimony from the Plaintiffs and the Defendants or their representatives. The
Defendants, on the other hand, summarized the statutory genesis of the TSA program and how
the program had been applied to the Plaintiffs. The Defendants argued, essentially, that the
Plaintiffs have not established a likelihood of success on the merits, first, because the Governor
of Puerto Rico had agreed to the termination of the program, and second, because the Plaintiffs
3

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cannot establish that they have a property right to continued benefits (and therefore, cannot establish the violation of a constitutional right).
Having reviewed the cases cited by the parties and considered their arguments, I find that further briefing on the issues would be helpful to the Court. The parties should address the statutory scheme in greater detail. In connection therewith, I would like the parties to address the implication of the refusal of the Governor of Puerto Rico to request an extension of the TSA program benefits.
The Defendants shall file their opposition by July 13, 2018 and the Plaintiffs a reply thereto by July 18, 2018. After reviewing the parties’ submissions, I will determine whether a further hearing is necessary. I expect to issue my Order by July 23, 2018. Accordingly, the TRO entered by Judge Sorokin shall remain in place until least midnight July 23, 2018 (i.e., enabling Plaintiffs and the class to stay until checkout time on July 24, 2018). So Ordered:

Dated: July 3, 2018 9:25 a.m.

/s/ Timothy S. Hillman TIMOTHY S. HILLMAN DISTRICT JUDGE

4

 
 Case 4:18-cv-40111-TSH Document 28 Filed 07/12/18 Page 1 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ELIZABETH DELGADO SANTOS, RAFAEL OCASIO BARRETO, BETHZAIDA CRESPO VICENTE, and IRIS OTERO, on behalf of themselves and all similarly situated individuals
Plaintiffs,
-against-
FEDERAL EMERGENCY MANAGEMENT AGENCY, WILLIAM BROCK LONG, THOMAS VAN ESSEN, and ALEJANDRO DE LA CAMPA,
Defendants.

CIVIL ACTION NO. 4:18-cv-40111-TSH
FIRST AMENDED CLASS ACTION COMPLAINT SEEKING INJUNCTIVE AND DECLARATORY RELIEF

1. The United States Federal Government and the Federal Emergency Management Agency (“FEMA”) have overwhelmingly failed the people of Puerto Rico before, during and after Hurricane Maria, the worst natural disaster to hit the island in 100 years, and they continue to do the same. Hurricane Maria ravaged Puerto Rico in September 2017. The storm destroyed nearly 100,000 homes, displaced thousands of Puerto Rican families, and left the island largely uninhabitable. The federal response—in stark contrast to presidential and agency responses to Hurricanes Harvey in Texas and Irma in Florida approximately one

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month earlier—was slow, insufficient and ambivalent.1 2. On September 30, 2017, before Maria had fully dissipated, President
Donald J. Trump tweeted that Puerto Ricans “want everything to be done for them.” On October 12, 2017, just ten days after Maria dissipated, President Trump tweeted: “We cannot keep FEMA, the Military & the First Responders . . . in P.R. forever!” In contrast, on August 30, 2017, approximately two weeks after Hurricane Harvey hit Texas, the President tweeted: “After witnessing first hand [sic] the horror & devastation caused by Hurricane Harvey, my heart goes out even more so to the great people of Texas.”
3. Presidential tweets have become a proxy for executive attention and government action. While hundreds of Hurricane Harvey victims remain sheltered in hotels and motels and thousands more are safe in alternate housing arrangements made by or through FEMA, the agency seeks to evict approximately 2,000 Puerto Rican Hurricane Maria survivors from their current (and only) homes.
4. Against this backdrop, four such survivors, Plaintiffs Elizabeth Delgado Santos, Rafael Ocasio Barreto, Bethzaida Crespo Vicente and Iris Otero
1 Hurricane Irma also impacted Puerto Rico. Nevertheless, the bulk of FEMA’s response and public attention surrounding Irma focuses on Florida and the Southeast. Unless otherwise indicated in this First Amended Complaint, all references to Irma are to that storm’s impact on Florida and the surrounding region and FEMA’s response in the same area of the continental U.S., not the island of Puerto Rico.
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(collectively, “Plaintiffs”), by and through their undersigned attorneys, bring this First Amended Complaint against FEMA, William Brock Long, Thomas Van Essen and Alejandro De La Campa, on behalf of themselves and all similarly situated individuals.
I. PRELIMINARY STATEMENT 5. This is an action to hold unlawful and set aside certain actions of FEMA, the federal agency charged by statute to care for Americans who are victims of natural disasters; and to compel FEMA to take other necessary actions that it has unreasonably delayed or unlawfully withheld from Puerto Rican evacuees, placing them at risk of significant, irreparable injury. Contrary to its charge, FEMA plans to prematurely abort assistance to thousands of Puerto Ricans displaced by Hurricane Maria. FEMA previously announced that effective June 30, 2018, it would discontinue its Transitional Sheltering Assistance (“TSA”) program to Puerto Rican evacuees of Hurricane Maria (hereinafter “TSA evacuees”). Through TSA, FEMA provides direct funding to hotels and motels that serve as shelter for thousands of individuals and families who were forced to evacuate Puerto Rico after the hurricane severely damaged or destroyed their homes and communities. Their homes remain uninhabitable due to the hurricane damage and many of their communities lack fundamental infrastructure and
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medical support these families need to survive. While FEMA offered Plaintiffs a one-way airline ticket to return to their “homes” in Puerto Rico, the offer is illusory as it provides a “ticket to nowhere”; there are no homes to which these families can return. FEMA is forcing these citizens to become homeless, and in doing so, attempting to shift the legal, financial and social responsibility from itself, where it belongs, to the local, state and municipal communities in which these individuals live.
6. Because FEMA’s termination of TSA would have left the TSA evacuees with no place to go, Plaintiffs filed an initial Complaint and an Emergency Motion For A Temporary Restraining Order Or Preliminary Injunction And Declaratory Relief on June 30, 2018—the day before the TSA evacuees would have been forced out of their hotel rooms. Prior to initiating this lawsuit, Plaintiffs and the organizations that support them believed in good faith that FEMA would again extend the TSA program, just as it had done before for TSA evacuees and in the aftermath of earlier hurricanes that displaced citizens from their homes in the continental United States. In the week before Plaintiffs and the class were to be evicted, it became clear that FEMA would not similarly extend TSA benefits to Puerto Rican hurricane survivors.
7. On June 30, 2018, the Honorable Leo T. Sorokin entered a Temporary Restraining Order (“TRO”), enjoining Defendants and their agents from
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terminating the TSA program until at least midnight July 3, 2018, enabling Plaintiffs and the class to stay in transitional shelters until checkout time on July 4, 2018. The Court further ordered Defendants and their agents to provide notice and take whatever action is necessary to extend the assistance until the aforementioned deadline.
8. FEMA’s response was quick, but insufficient, announcing only that the agency would extend transportation assistance in the form of flights back to Puerto Rico until August 30, 2018. The announcement made no mention of any temporary housing or support during the two-month gap in time between FEMA’s eviction of TSA evacuees and their return flights.
9. On July 3, 2018, the Honorable Timothy S. Hillman, ordered that the TRO remain in place until at least midnight July 23, 2018, enabling Plaintiffs and the class to continue to have temporary housing at least to that date and pending further order of the Court.
10. But for the TRO, many TSA evacuees would now be homeless. FEMA’s unlawful termination of TSA is without any plan to transition into longerterm housing some 2,000 TSA evacuees who have already faced severe trauma and lost most, if not all, of their belongings, their homes and their jobs. For Plaintiffs and many other TSA evacuees, especially the poor, elderly and sick, returning to their homes (or what is left of their homes) and communities in Puerto Rico is not
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a viable option. Through no fault of their own, TSA evacuees simply lack the resources to either relocate in the continental United States or return to Puerto Rico at this time. In such circumstances, FEMA is the agency charged with providing assistance to these citizens.
11. This action, therefore, is brought by four named Plaintiffs, on their own behalf and on behalf of a class of people similarly situated, seeking an order that FEMA obey the laws put into place to address the problems associated with disasters such as Hurricane Maria and continue FEMA’s TSA program until all eligible individuals have either received temporary housing assistance or found alternative, permanent housing.
12. Defendants’ conduct violates (a) the substantive and procedural components of the Due Process Clause; (b) three substantive provisions of the Administrative Procedures Act (“APA”); (c) the equal protection component of the Due Process Clause; and (d) Section 308 of the Stafford Act, which requires nondiscrimination in disaster assistance. Each of these violations independently warrants declaratory relief under Section 2201 of the Declaratory Judgment Act and declaratory and injunctive relief in their own right.
13. As to the APA, Section 706(2)(B) requires courts to hold unlawful and set aside any agency action that is contrary to constitutional right, power,
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privilege or immunity. Because Defendants’ conduct violates due process, the Court must also hold such action unlawful and set it aside.
14. Second, Section 706(2)(A) of the APA requires courts to hold unlawful and set aside any agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Defendants’ decision to terminate TSA to thousands of evacuees without any plan to transition evacuees into longer-term housing is arbitrary and capricious. FEMA’s announcement to terminate TSA was done without any analysis or basis in fact to support its decision to treat the Puerto Rican evacuee’s differently than prior hurricane survivors who lost their homes. Nor has FEMA’s decision provided these families any rights of appeal or review before they were to be summarily evicted.
15. Third, Section 706(1) of the APA requires courts to compel agency action where such action has been unlawfully withheld or unreasonably delayed. Defendants have decided to terminate TSA on the one hand, while unreasonably delaying activation of any replacement housing assistance on the other hand. They should be compelled to continue TSA until FEMA provides eligible evacuees sufficient Temporary Housing Assistance (“THA”) and implements an adequate replacement solution, or until Plaintiffs and class members have each been relocated into alternate housing.
16. Plaintiffs seek such relief because it appears that, absent judicial
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oversight, the victimization of evacuees will continue. II.
JURISDICTION AND VENUE 17. This Court has subject matter jurisdiction in this action under 28 U.S.C. § 1331 (action arising under the laws of the United States), 28 U.S.C. § 1361 (action to compel officer or agency to perform duty owed to Plaintiff), and 5 U.S.C. §§ 701-706 (judicial review under APA). An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory relief, injunctive relief and other relief against Defendants pursuant to 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706. 18. Venue in this Court is proper under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this District.
III. PARTIES A. INDIVIDUAL PLAINTIFFS 19. Plaintiff ELIZABETH DELGADO SANTOS is a 35-year old woman from San Juan, Puerto Rico. She relocated as a hurricane evacuee to Holyoke, Massachusetts on January 9, 2018 with her 6-year old daughter to live with her mother. Ms. Santos also has a 12-year old son who was being cared for by her
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mother. Ms. Santos left Puerto Rico because the roof of the home she had been living in was severely damaged, allowing water to seep in throughout the home. In addition, flood damage caused her to lose almost all her personal belongings. The home in which Ms. Santos was living in Puerto Rico was an inheritance from her father; however, Ms. Santos is one of six children, and legal title has not yet been conferred. This made Ms. Santos ineligible to receive any assistance to make the repairs necessary to make the home livable. Ms. Santos’ son suffers from depression and has been diagnosed ADHD. Ms. Santos’ daughter was unable to attend school in Puerto Rico for at least two months and the school was on a closure list. When Ms. Santos left Puerto Rico, the power had yet to be restored to her neighborhood. Ms. Santos and her two children were unable to remain in her mother’s house more than a few weeks, rendering Ms. Santos and her children homeless. Ms. Santos applied for and received TSA assistance from FEMA and has lived in a hotel in Worcester, Massachusetts since February 7, 2018. If Ms. Santos and her two children are evicted from their temporary hotel room, they will be left homeless.
20. Plaintiff RAFAEL OCASIO BARRETO is a 48-year-old man from San Juan, Puerto Rico. He relocated as a hurricane evacuee to New York City on October 31, 2017, after first going to Miami, Florida on October 6, 2017, and Connecticut on approximately October 16, 2017. Mr. Ocasio Barreto relocated as
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an evacuee due to his precarious living situation. He currently resides in a hotel under the TSA program in New York. Mr. Ocasio Barreto has no residence to return to in Puerto Rico. He has experienced depression, anxiety and various mental health conditions for which he has sought and continues to receive treatment in New York. Mr. Ocasio Barreto has searched for, but has been unsuccessful in securing permanent housing. If he is evicted from his temporary hotel room, he will be left homeless.
21. Plaintiff BETHZAIDA CRESPO VICENTE is a 36-year-old woman who self-evacuated from Dorado, Puerto Rico, with her three children and husband on November 16, 2017. Ms. Crespo Vicente and her family currently reside in a hotel under the TSA program in central Florida. Ms. Crespo Vicente had rented a home in Puerto Rico, which was completely destroyed by Hurricane Maria. As a result, she was forced to temporarily relocate to her mother-in-law’s home, where nine people were living in a small house with no electricity. Ms. Crespo Vicente’s children could not attend school in Puerto Rico, which had been temporarily closed due to the impact of the hurricane. Ms. Crespo Vicente suffers from manic depressive disorder, anxiety and scoliosis, for which she is awaiting surgery in Florida. Ms. Crespo Vicente had to undergo emergency surgery in March 2018 to address a growth on her uterus. Since her recent surgery, she stopped receiving public assistance because her mail was not being accepted at the extended-stay
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hotel where she and her family currently reside. Ms. Crespo Vicente’s husband is working; however, they have not been able to earn sufficient income to pay the security deposit for an apartment or ensure they can adequately cover rental costs and transition into permanent housing. Ms. Crespo Vicente’s husband suffers from high blood pressure and stomach disorders, which require medical attention that he has sought in Florida. The Crespo Vicente family has no other available housing options, and if they are evicted from their temporary hotel room, they will be left homeless.
22. Plaintiff IRIS OTERO is a 39-year-old woman who self-evacuated from San Juan, Puerto Rico, with her five children after Hurricane Maria devastated the island. Ms. Otero is a single mother who was living in public housing that was completely destroyed by the hurricane. Ms. Otero’s landlord would not repair her apartment or the public housing building in Puerto Rico, which became infested with rats as the front door to her apartment was blown away during the hurricane. Ms. Otero and her children currently reside in a hotel under the TSA program in central Florida. Ms. Otero’s three oldest children suffer from ADHD, a condition of diagnosed hyperactivity that requires ongoing psychological or psychiatric care and supervision. Her children’s schools in Puerto Rico were closed indefinitely. Three of Ms. Otero’s children have other learning disabilities, which makes it extremely difficult for her to relocate them again based
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on their educational needs and the level of care required for their growth and wellbeing. She has no assistance or support in Puerto Rico to help her re-establish herself and her children there, as her mother is elderly and suffers from several medical conditions. Ms. Otero has not received public assistance in Florida and cannot afford to move to more permanent housing. Ms. Otero feels desperate and scared and has suffered from insomnia and stress at the prospect of finding herself and her five children homeless. Ms. Otero and her children have no other available housing options, and if they are evicted from their temporary hotel room, they will be left homeless. B. CLASS PLAINTIFFS
23. Plaintiffs bring this action on their own behalf and on behalf of all those similarly situated.
24. Plaintiffs seek to represent a class consisting of all persons who (a) as of September 16, 2017, resided in Puerto Rico, declared to be a Federal Disaster Area due to Hurricane Maria; (b) have applied for and received TSA under the Stafford Act, pursuant to 42 U.S.C. § 5174(a) through (d) and the federal regulations promulgated thereunder; (c) are currently residing in TSA housing; (d) have not been able to secure alternative housing; and (e) will have their TSA discontinued upon expiry of the TRO or such other temporary relief ordered by the Court.
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25. Each of the requirements of Federal Rule of Civil Procedure 23(a) is met.
26. Members of the class are so numerous that joinder of all members is impracticable, and individual litigation by each would necessarily and substantially burden the operation of the judicial system and is prohibitive because the individual class members lack the knowledge and financial means to maintain individual actions. In addition, the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications establishing incompatible rules of law for the provision of disaster relief.
27. The number of class members can best be estimated from records in the control of Defendants. They are believed to number in the hundreds.
28. There is a well-defined community of interest in the questions of law and fact involving the claims of the members of the class, in that FEMA has systemically applied the policies and practices challenged in this action to wrongfully, arbitrarily, discriminatorily and unequally discontinue the TSA program under the Stafford Act before evacuees have secured alternative housing. There are common questions of law or fact.
29. The claims of the named Plaintiffs are typical of the class members in that each named Plaintiff, due to the challenged policies and practices of FEMA: (a) has been displaced by Hurricane Maria and/or had their primary pre-disaster
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residence rendered uninhabitable; (b) is currently receiving TSA; and (c) will be displaced if FEMA discontinues TSA as it threatens to do.
30. The named Plaintiffs will adequately and fairly represent and protect the interests of the class because each named Plaintiff has suffered the same or similar harm, and has the same or similar interest in redress of his/her rights as all other members of the class, and thus their interests overlap and do not conflict. The attorneys representing Plaintiffs, LatinoJustice PRLDEF, Manatt, Phelps, & Phillips, LLP and Hector E. Pineiro, are experienced and capable litigators possessed of sufficient resources to adequately protect and represent the interests of the Plaintiff class.
31. The requirements of Federal Rule of Civil Procedure 23(b)(2) are met in that the regulations, practices and procedures which are the subject of this lawsuit have been applied to the members of the class as a whole, and Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. A class action is the exclusive method by which the interests of all affected persons can be adequately protected. C. DEFENDANTS
32. Defendant Federal Emergency Management Agency was created in 1979 as a result of the merging of several federal agencies that handled disaster-
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related responsibilities. FEMA is the federal agency designated by the President to administer the THA program in accordance with the provisions of the Stafford Act and the federal regulations. As an agency of the federal government, FEMA’s actions are directed and carried out by other agencies and individuals. When used in this Complaint, the acronym “FEMA” shall be understood to refer not only to that agency, but to the Defendants listed below as well.
33. Defendant William Brock Long has been the Director of FEMA from June 20, 2017, through the present.
34. Defendant Thomas Van Essen is the FEMA Regional Director with administrative responsibility for FEMA’s response to Hurricane Maria victims from Puerto Rico.
35. Defendant Alejandro De La Campa is the Director of FEMA’s Caribbean Area Division, which implements and coordinates all emergency management programs in Puerto Rico.
IV. BASIS FOR RELIEF 36. This action and the relief requested are authorized under 28 U.S.C. § 1361, 28 U.S.C. § 2201, 28 U.S.C. § 2202, 28 U.S.C. § 2412(b), 42 U.S.C. §§ 5151, 5174, and 5 U.S.C. §§ 701 et seq. and the federal regulations promulgated thereunder, and the Due Process Clause of the Fifth Amendment to
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the United States Constitution. 37. Under the Stafford Act, victims of a disaster are eligible for “financial
or other assistance” to meet their housing needs if they have been “displaced from their pre-disaster primary residences,” or their pre-disaster primary residences “are rendered uninhabitable as a result of damage caused by a major disaster.” 42 U.S.C. § 5174(b)(1).
38. 42 U.S.C. § 5170b(a)(3)(B), also known as the Stafford Act’s “public assistance” provision, gives FEMA the power to perform “work or services essential to saving lives and protecting and preserving property or public health and safety, including . . . emergency shelter . . .” Under this authority, FEMA provides short-term TSA to disaster survivors who cannot return to their homes after congregate shelters have closed. In most cases, assistance is provided through direct payments to hotels and motels.
39. Under the Stafford Act, victims of a disaster are also eligible for Temporary Housing Assistance. THA is available for 18 months from the date that the President declared a disaster, but may be extended beyond that time. 44 C.F.R. § 206.110(e).
40. There are four forms of THA: (1) money for renting alternate housing (“Direct Rental Assistance”), (2) rent-free occupancy in federally provided temporary housing, (3) money for repair of owner-occupied housing, and (4)
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money for replacement of owner-occupied housing. 42 U.S.C. § 5174(c); 44 C.F.R. § 206.117(b).
41. Applications for THA, and for the distribution of federal benefits pursuant to the Stafford Act, must be done in “an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, or economic status.” 42 U.S.C. § 5151(a).
42. On September 18, 2017, President Donald J. Trump declared a state of emergency in the Commonwealth of Puerto Rico. President Trump’s declaration required FEMA to provide assistance in a nondiscriminatory manner under the Stafford Act. FEMA’s duty to provide assistance to victims of Hurricane Maria was mandatory, not discretionary.
V. SUMMARY OF FACTS A. PUERTO RICO 43. Puerto Rico, officially known as the Commonwealth of Puerto Rico (Estado Libre Asociado de Puerto Rico), is an unincorporated territory of the United States, located in the northeastern Caribbean. Puerto Rico is only 100 miles long by 35 miles wide, making it the smallest island of the Greater Antilles. Puerto Rico consists of an archipelago that includes the main island of Puerto Rico and
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several smaller islands—Vieques, Culebra, Mona and numerous islets—all ravaged by Hurricane Maria.
44. For more than a century, Puerto Rico and its residents (which number 3.4 million) have occupied a unique place as American citizens, but are culturally, linguistically and economically distinct from most citizens born in the continental United States.
45. Economically, Puerto Rico was suffering before Maria. Some 45 percent of the island’s 3.4 million residents lived in poverty with an unemployment rate of 10.5 percent and more than 16,000 homeowners were facing foreclosure. In contrast, less than 13 percent of Americans as a whole live below the poverty line. Comparative studies regarding the forms of vulnerabilities between Puerto Rico, Florida and affected Hurricane counties in Texas after the hurricanes that affected those regions found poverty rates in affected counties in Texas at 15% (2016) versus Florida 14.7% and Puerto Rico 43.5%. Compounding the predicament of the evacuees in the TSA program, the Government of Puerto Rico before Irma or Maria found itself in a debt crisis with more than $73 billion in bond debt as well as over $50 billion in pension obligations.2
46. While Puerto Ricans are citizens of the United States, they have
2 https://www.oxfamamerica.org/explore/research-publications/far-from-recoverypuerto-rico-six-months-after-hurricane-maria/.
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unique national origin and identity, and discrimination on such basis or on the basis of their “citizenship” as Puerto Ricans is strictly prohibited under the Constitution. Zappa v. Cruz, 30 F. Supp. 2d 123, 129-30 (D.P.R. 1998), aff’d sub nom. DiMarco-Zappa v. Cabanillas, 238 F.3d 25 (1st Cir. 2001). Such discrimination, as well as discrimination based on race, color, economic status, English proficiency and national origin, are directly implicated by FEMA’s disparate treatment of Puerto Rico, Hurricane Maria survivors and the TSA evacuees. B. HURRICANE MARIA
47. On September 20, 2017, Hurricane Maria hit Puerto Rico. The hurricane, classified as a Category 5 storm, was the worst natural disaster in Puerto Rico in over a hundred years, crippling the island’s infrastructure and causing an estimated $90 billion in damage. Maria did not dissipate until October 2, 2017.
48. Hurricane Maria devastated the electrical grid, causing a one-hundred percent blackout in Puerto Rico and leaving hundreds of thousands of residents without power for months. Currently, ten months after the hurricane hit the island, there are still thousands of residents whose electricity has not yet been restored.
49. The hurricane severely, if not permanently, damaged tens of thousands of homes and left nearly 75,000 Puerto Ricans without housing.
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Although this problem has yet to be fully resolved, FEMA insists that the Plaintiffs and class members who have no safe or habitable home on the island must return to Puerto Rico rather than remain in TSA-financed housing.
50. Many municipalities throughout the island were without potable water, or any kind of running water, for weeks or months at a time, creating a public health hazard and concern for healthcare and nutritional assistance for all residents.
51. As a result of the lack of drinking water, combined with contaminated sources of water that residents were told were safe for drinking, cases of leptospirosis, a potentially deadly bacterial disease that is water-borne, began to break out, putting at risk up to two million residents of Puerto Rico.3
52. The lack of electricity and infrastructure damage extended to healthcare facilities and hospitals; most were running on generators, and some had no electricity even by generators. Residents were told not to seek out healthcare services unless it was an emergency, given the lack of medical equipment, personnel, facilities in a condition to tend to patients, and electricity.
53. It is estimated that the lack of available and accessible healthcare
3 https://q13fox.com/2018/07/03/bacterial-disease-in-puerto-rico-blamed-fordeaths-after-hurricane-maria/.
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services, electricity, food and drinking water, in addition to widespread environmental and water contamination, dangerous housing conditions, broken infrastructure, damaged roads and centralization of aid led to the deaths of approximately 4,645 Puerto Ricans, and perhaps thousands more—a number far higher than in either Hurricane Harvey or Irma.4
54. Since the hurricane, Puerto Rico has seen a steep increase in the number of suicides and mental health issues, including post-traumatic stress disorder.
55. As a result of the damage inflicted on Puerto Rico by Hurricane Maria, thousands of Puerto Ricans became displaced and sought assistance on the mainland United States. It is estimated that between 100,000 and 300,000 Puerto Ricans left the island in the months following the hurricane to seek stable housing, employment and healthcare services. In addition, Puerto Ricans have left the island pursuing schooling options as 265 schools have closed on the island since Hurricane Maria.5
56. Evacuees are spread out across the country, with the highest concentration in Florida, particularly central Florida, as well as in the New York City metropolitan and tri-state area, Philadelphia, Chicago, Boston, Pennsylvania 4 https://www.wsj.com/articles/puerto-rico-data-suggests-hurricane-maria-deathtoll-is-much-higher-1528928688. 5 https://www.nytimes.com/2018/06/01/us/puerto-rico-school-closings.html.
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and elsewhere throughout the United States. 57. Many evacuees are families or single parents with children, who have
already been enrolled in local schools. Some of the evacuees are elderly individuals who have arrived by themselves, with no family support or alternative housing options. C. THE FEDERAL RESPONSE TO MARIA COMPARED TO
RESPONSES TO HURRICANES IRMA AND HARVEY 58. As Hurricane Maria ravaged Puerto Rico, FEMA relief efforts were well underway in Florida and Texas in response to Hurricanes Irma and Harvey, respectively. A comparison of FEMA’s response (as widely reported by media, nonprofit organizations and FEMA itself) to these three (and other) hurricanes compels the conclusion that FEMA’s response in Puerto Rico was not only inadequate, it was also unequal and discriminatory in violation of law. 59. FEMA’s unequal treatment of Puerto Ricans started before Maria hit the island. In preparation for both Harvey and Irma, FEMA was on the ground before each storm made landfall. For Hurricane Harvey, FEMA had supplies and personnel positioned in Texas before the storm made landfall on August 25, 2017. Within days, the number of FEMA employees, other federal agencies, and the National Guard deployed exceeded 31,000. Despite being already positioned in Houston in response to Harvey, even more federal personnel responded to Hurricane Irma when it made landfall in Florida on September 10, 2017. More
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than 40,000 federal personnel, including 2,650 FEMA staff, were in place four days later. In comparison (according to a FEMA tweet on September 25, 2017) only 10,000 federal staff were on the ground in Puerto Rico and the Virgin Islands—almost a week after Maria hit the ground.6
60. FEMA’s unequal response in Puerto Rico continued after Maria made landfall. For instance, within six days of Hurricane Harvey hitting Texas, U.S. Northern Command had deployed 73 helicopters over Houston, which are critical for saving victims and delivering emergency supplies. It took more than three times as long after Maria hit before there were as many helicopters in the air.
61. Within 9 days of Harvey hitting Texas, FEMA had approved $141.8 million in individual assistance to Harvey victims. Within 9 days after Maria, FEMA had approved only $6.2 million for Maria victims. During the same time period, FEMA provided 5.1 million meals, 4.5 million liters of water and over 20,000 tarps to Houston; but within 9 days of Maria, it delivered only 1.6 million meals, 2.8 million liters of water and roughly 5,000 tarps to Puerto Rico.
62. The contrast with Irma is starker. Within 9 days of Irma, FEMA delivered 10.9 million meals, 7 million liters of water and over 98,000 tarps. Within just 4 days of Irma hitting the ground, FEMA had transferred 6.6 million meals and 4.7 million liters of water to states in the Southeast. 6 https://twitter.com/fema/status/912340037882216449.
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63. FEMA’s comparatively slow approach in Puerto Rico (which had already been impacted by Irma as well) continued long after FEMA’s initial mobilization. For instance, FEMA took 43 days to approve permanent disaster work for Puerto Rico. The agency approved similar work for Texas within 10 days after Harvey. The federal government has also placed a host of unique regulatory hurdles and conditions on Puerto Rico’s receipt of aid. FEMA’s uneven and discriminatory treatment of Maria survivors continues. D. FEMA PROVIDES TRANSITIONAL SHELTERING ASSISTANCE
TO EVACUEES. 64. On October 30, 2017, FEMA announced that TSA would be available to Puerto Ricans “unable to return to their homes because they are displaced as a result of Hurricanes Irma and Maria.” (FEMA News Release Number DR-4339-PR NR 038.) FEMA explained that “Transitional Sheltering Assistance allows eligible applicants to shelter in a hotel or motel, for a limited period of time, as a bridge to intermediate and longer-term housing.” FEMA also promised to provide transportation to TSA evacuees for their return to Puerto Rico, but noted that “[a]pplicants should expect that it may take several weeks to arrange transportation, given the limited availability of commercial flights.” 65. Prior to Hurricane Maria, TSA had only been offered to survivors of natural disasters whose home were rendered uninhabitable. However, following Hurricane Maria, based on information and belief, FEMA extended the TSA
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program to all Puerto Rican evacuees due to the overall devastation of infrastructure on the island, depriving citizens of basic necessities such as water and electricity, in addition to safe, habitable shelter.
66. Among the displaced Puerto Rican evacuees, thousands began receiving TSA from FEMA, which included vouchers for extended stays in hotels around the country or in temporary housing facilities, although some were denied these benefits outright. Many of the households that initially received TSA were later cut off. Many thousands more left the island and likely found family members, friends, or acquaintances to stay with, even if temporarily. Others have ended up directly in homeless shelter systems throughout various states. The TSA program was scheduled to end for Puerto Ricans on January 13, 2018, leaving the remaining TSA evacuees still in hotels and motels with no place to go.
67. In a memorandum, date stamped December 29, 2017, FEMA approved a TSA extension to run from January 14, 2018 through March 20, 2018. FEMA noted that “[t]his extension [wa]s needed due to a large number of damaged homes across the island and lack of available utilities in many areas. Survivors are still in need of short-term, temporary sheltering options while their homes are restored and repaired.” These conditions persist today.
68. The extension did not apply to all TSA evacuees. Throughout the TSA process, FEMA has periodically ended eligibility for certain Maria survivors,
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reducing the number of overall TSA evacuees that remain in the program. 69. On April 20, 2018, FEMA approved another extension of the TSA
program. In its news release announcing the extension (FEMA News Release Number 159), FEMA stated that of approximately 2,800 TSA evacuees remaining in the program, 1,700 were now ineligible for TSA, but would be allowed to continue participating. Many of these evacuees had been pressured into “voluntarily” withdrawing their applications or were deemed to have voluntarily withdrawn an application after being unavailable for an on-site inspection. Many others did not own a home that was damaged but had nevertheless been displaced from their residences (whether rentals or otherwise) and had no place to return to in Puerto Rico. These economic circumstances now rendered them ineligible for TSA according to FEMA. Nevertheless, FEMA allowed them to continue participating in the program.
70. In total, the TSA program was extended at least three times in order to avoid massive secondary displacement of TSA evacuees, the overwhelming majority of whom had not been able to secure employment or long-term housing.
71. Prior to each extension, individuals and families participating in the TSA program experienced anxiety and high levels of uncertainty about what would happen to them, given inconsistent and deficient communications from FEMA, and the stark reality that most evacuees had not been successful in securing longer-term
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housing or employment. E. DEFENDANTS PLAN TO TERMINATE TSA AS SOON AS THE
TRO EXPIRES. 72. The current TSA program for victims of Hurricane Maria was scheduled to permanently expire on June 30, 2018, and FEMA has stated that it will not consider any further extension requests. 73. Hundreds of families are still in hotels under TSA, unsure where they will go when FEMA terminates TSA. Unable to secure alternative longer-term housing solutions, they will likely end up in homeless shelters, return to precarious housing and employment situations in Puerto Rico, or worse—living on the street. Families currently under the TSA program have asked that the program be extended until they can transition to long-term housing. 74. There are approximately 2,000 TSA evacuees throughout the United States, including Plaintiffs, who (a) were displaced from their homes by Hurricane Maria; (b) were given a voucher by FEMA to seek lodging in a hotel; (c) have remained in the TSA program until the present time with FEMA paying for their temporary hotel residences; (d) are still unable to either return to their previous homes or secure adequate alternative permanent housing; and (e) have reasonably relied, in making long-term housing plans, on the expectation that FEMA would continue to support them with the TSA program until they can either return to their homes or find other sustainable permanent housing.
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75. While receiving federal assistance from FEMA, most TSA evacuees are ineligible for local benefits and housing assistance. If TSA assistance to these hurricane victims is revoked, they will become homeless.
76. TSA evacuees have no other housing options open to them. They do not have family members with whom they can stay, and they cannot return to Puerto Rico because there are no housing options for them. Most have lost their jobs and have no source of employment to go back to. In addition, many, including Plaintiffs, left Puerto Rico to seek healthcare for conditions they had that became aggravated as a result of lack of proper medical attention in Puerto Rico after the hurricane, and others have developed serious conditions or illnesses since their arrival. They need to remain in their current location, where they can continue to receive treatment and care for illnesses that include cancer, hypertension, diabetes and asthma.
77. If the remaining TSA evacuees are evicted without the requested relief, and no local or state government programs are immediately put in place to secure stable housing for them, they will become homeless and suffer irreparable injury.
78. Upon information and belief, Plaintiffs and putative class members have been actively working to secure permanent or longer-term housing. They continue to do so.
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79. There are several ways in which FEMA can ensure that evacuees whose TSA is terminated are not left homeless.
80. FEMA has the ability to enter into an Inter-Agency Agreement (IAA) with the Department of Housing and Urban Development (HUD) to initiate the Disaster Housing Assistance Program (DHAP), as they did after Hurricane Katrina and Hurricane Sandy. FEMA has represented that “DHAP is not necessary to house displaced disaster survivors” because “FEMA collaborates directly with HUD to find housing solutions for disaster survivors and is providing a variety of housing programs to adequately meet the unique needs of survivors that are more timely and effective than DHAP.”7 FEMA has not kept this promise.
81. FEMA also has the ability to extend Direct Rental Assistance to all of the TSA evacuees in order to help them secure longer-term housing options, including apartment leases that would allow them to contract housing for longer periods of time. As of now, and upon information and belief, this program has been extended to remarkably few TSA evacuees. Some evacuees have applied for THA, but have not received it.
82. FEMA unlawfully set the final TSA deadline for June 30, 2018, without a plan for transitioning into longer-term or long-term housing some 2,000
7 FEMA Media Library (May 3, 2018), available at https://www.fema.gov/medialibrary/assets/images/163928.
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individuals who have faced severe trauma and who have lost most, if not all, of their belongings, their homes, and their jobs and who face healthcare challenges. Before FEMA’s planned eviction of TSA evacuees on June 30, 2018, some hotels received notification that FEMA would no longer pay for Plaintiffs and all TSA evacuees’ stays. Some hotels then sent notices to evacuees that they would be responsible for payment as of July 1, 2018. For some evacuees, this was the only notice of benefits termination that they received. TSA evacuees and Plaintiffs are terrified at the possibility of being evicted with no alternative housing options available.
83. This litigation seeks to stop the eviction of TSA evacuees from their hotels without any alternative housing. F. LIKE ITS INITIAL RESPONSE TO MARIA, FEMA’S PROVISION
OF TSA TO MARIA SURVIVORS HAS BEEN INEQUITABLY BELOW TSA LEVELS AFTER IRMA AND HARVEY. 84. The amount and timing of TSA in response to Hurricane Maria has been unequal and discriminatory in comparison to other U.S. hurricanes. 85. FEMA has provided TSA assistance to victims of Hurricane Maria for only nine months. However, after Hurricanes Katrina and Rita, FEMA extended temporary housing assistance, which would have included TSA, for up to 26
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months for evacuees.8 After that, FEMA provided additional transitional housing assistance to the victims of Hurricanes Katrina and Rita through DHAP. FEMA has arbitrarily and capriciously decided not to extend those same benefits to Plaintiffs and the putative class. Such conduct is also unequal and discriminatory in violation of law.
86. From the outset, FEMA’s review of applications for individual assistance after Maria appeared motivated by discriminatory intent. FEMA grant denials in Puerto Rico were nearly double the number of denials for individual assistance in Texas after Harvey.
87. Hurricane Harvey destroyed far fewer homes in Texas than Hurricane Maria did in Puerto Rico. Yet FEMA provided TSA to far fewer Puerto Rican survivors than to their Texan counterparts. According to FEMA: “Over the last 10 months, the TSA program has provided shelter to more than 60,000 households in Puerto Rico and Texas, making it the longest emergency shelter mission in the history of the program.” (https://www.fema.gov/medialibrary/assets/videos/166770.) Yet FEMA has separately acknowledged that the overwhelming majority, at least 54,637, of these affected households are Texan families, not Puerto Ricans. (FEMA News Release No. TRO-NR-004.)
8 https://www.fema.gov/news-release/2009/04/07/fema-temporary-housingprogram-ending-families-hurricanes-katrina-and-rita.
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88. FEMA also provided TSA for a longer period of time to Harvey evacuees than to Maria evacuees despite significant preexisting infrastructural and socioeconomic inequalities that make recovery in Puerto Rico substantially more difficult. FEMA extended TSA to Harvey evacuees seven times (compared to the three extensions it granted to Maria survivors). And, although FEMA planned to terminate TSA for the survivors of both hurricanes on the same day, June 30, 2018, FEMA initiated TSA to Texans two months before it launched the program for Puerto Rican evacuees. FEMA’s unequal and discriminatory treatment of Puerto Rico and its residents occurred before, during and after the hurricane.
89. There is one other key distinction between Puerto Rican and Texan survivors of the respective hurricanes—Puerto Rican survivors still have no place to go once FEMA kicks them out of TSA-participating hotels. FEMA’s arbitrary June 30, 2018, termination of TSA benefits was directly aimed at (or targeted) those individuals who have virtually no resources, economic or otherwise. If evicted without the requested relief, as FEMA has stated its intent to do, Plaintiffs and the putative class would suffer irreparable injury. G. DEFENDANTS’ CONDUCT HAS AND WILL PROXIMATELY
CAUSE IRREPARABLE HARM TO PLAINTIFFS, CLASS MEMBERS AND THE PUBLIC. 90. Defendants’ wrongful conduct has caused and will continue to cause Plaintiffs and class members irreparable harm and injury in that, absent judicial
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relief, they will be wrongfully denied and delayed essential housing assistance that is necessary for their health and welfare.
91. Without that housing assistance, Plaintiffs, class members, and their families will be unable to remain continuously in affordable housing and will face the threat of probable homelessness.
92. Before their evacuation from the island and relocation to TSA housing, many Plaintiffs, class members and their families were forced to live in intolerable, unsafe and unsanitary conditions as a result of Hurricane Maria and inadequate disaster relief, which has caused new medical conditions and complicated existing medical conditions. Without the requested relief, many others will also be forced to live in those same intolerable, unsafe and unsanitary conditions.
93. Many Plaintiffs, class members and their families, have been displaced and evacuated to distant places around the country, often by FEMA, and left without housing assistance and the means to return to their communities.
94. The lack of housing assistance for Plaintiffs, class members and their families has also served to split families and tear households apart.
95. Defendants’ knowing and continued failure and refusal to provide housing assistance to thousands of individuals and families, who will be evicted from their current TSA shelters, is causing, and will likely continue to cause,
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further destitution, homelessness, hunger and stress. As a consequence, the risk of illness will be increased and their lives will be endangered.
96. Defendants’ intentional and wrongful conduct will also result in significant costs to the public and waste of taxpayer funds. The loss of critically needed housing assistance harms those communities which have been destroyed by Hurricane Maria. The loss of housing assistance will harm many other communities throughout the country which have reached out to assist those who have been displaced and evacuated and now will face increased homelessness and, consequently, a higher incidence of persons with mental and emotional distress, illness, diseases and substance abuse.
97. As a result of the federal government’s failure to fulfill its mandatory duties, misconduct, state and local governments will be required to expend significant additional funds for the increased use of county health facilities to remedy these increased problems. H. PLAINTIFFS AND CLASS MEMBERS HAVE NO ADEQUATE
REMEDY AT LAW. 98. Plaintiffs, class members and their families are without a plain, speedy or adequate remedy at law, rendering injunctive relief appropriate in that (a) damages cannot adequately compensate Plaintiffs and the class for their injuries; (b) damages for the harm inflicted upon Plaintiffs and the class are difficult to
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ascertain; and (c) if the conduct complained of is not enjoined, a multiplicity of suits will result in that FEMA’s unlawful conduct is continuous and ongoing.
VI. CLAIMS FOR RELIEF
COUNT I: DEPRIVATION OF DUE PROCESS
U.S. Const. Amend. V (Defendants’ Conduct, Including Termination Of The TSA Program, Violates
Plaintiffs And Class Members’ Substantive And Procedural Due Process Rights.)
99. All prior paragraphs are incorporated as if fully set forth herein. 100. The Fifth Amendment to the United State Constitution provides that no person shall “be deprived of life, liberty, or property, without due process of law[.]” 101. Plaintiffs and the class are entitled to the protections of the Fifth Amendment. 102. The Due Process Clause has a substantive component that provides heightened protection against government interference with fundamental rights and liberty interests. The right to property, shelter and peaceful possession of one’s home are such fundamental rights and liberty interests. Violation of such rights by a government entity gives rise to a private right of action to redress such rights through declaratory, injunctive or other relief.
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103. Plaintiffs and similarly situated members of the class, also have property interests, including a right to retain possession, as current tenants in possession of FEMA subsidized hotel/motel units, which have become their only homes. Plaintiffs have the right to continuing and orderly housing assistance, and as eligible disaster victims, they may qualify to receive alternative THA. They also have a fundamental right to shelter and peaceful possession of their homes. Defendants’ intentional conduct knowingly impinges on these rights.
104. Defendants’ termination of TSA without an adequate housing alternative is not necessary to achieve a compelling state interest; nor is it reasonably tailored to address that interest.
105. The Due Process Clause of the Fifth Amendment to the United States Constitution also has a procedural component, prohibiting Defendants from depriving Plaintiffs and similarly situated members of the class of their property interests without adequate and timely notice of the type(s) of THA for which they qualify or may qualify and appropriate procedures for determining their eligibility for and obtaining such assistance prior to FEMA’s termination of the TSA Program.
106. FEMA has failed to provide Plaintiffs and similarly situated members of the class, prior to terminating the TSA Program, with proper notice, information
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and procedures for determining their eligibility or continuing eligibility for THA, including the programs mentioned above, so that continuing assistance is assured.
107. FEMA’s failure to provide Plaintiffs and similarly situated members of the class, prior to terminating the TSA Program, with proper information and procedures (in a manner and language that Plaintiffs and TSA evacuees can understand) regarding eligibility for alternative and continuing THA prevents or frustrates Plaintiffs and similarly situated members of their class in obtaining alternative THA, resulting in homelessness and inadequate housing.
108. This amounts to a deprivation of a property interest without adequate notice and other due process.
109. As a result, Defendants have violated the rights of Plaintiffs and similarly situated members of the class under Due Process of law as guaranteed by the Fifth Amendment to the United States Constitution.
110. Plaintiffs are entitled to a judicial declaration that (a) Plaintiffs have a right to stay in possession of their current shelter; and (b) Defendants’ termination of the TSA Program as described above violates Plaintiffs’ and class members’ constitutional rights. Plaintiffs are further entitled to injunctive relief restraining and/or enjoining Defendants from terminating TSA without the process prayed for below and an adequate housing alternative. ///
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COUNT II: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 706(2)(B) (Defendants’ Conduct Should Be Declared Unlawful And/Or Set Aside Because It Is Contrary To Constitutional Right, Power, Privilege, Or
Immunity.) 111. All prior paragraphs are incorporated as if fully set forth herein. 112. The APA empowers the Court to “hold unlawful and set aside agency action, findings, and conclusions” that are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). In addition, this Court has authority under 28 U.S.C. § 1331 and its traditional powers of equity to declare invalid and enjoin agency action that violates the Constitution. 113. Where a Complaint contends that agency action offends the Constitution, and for that reason should be enjoined, the Court does not afford deference to the agency, but instead reviews the constitutional issues independently. 114. As detailed above, Defendants’ conduct violates Plaintiffs’ substantive and procedural due process rights, including, without limitation, by depriving Plaintiffs of their fundamental right to shelter and peaceful possession of their homes; and doing so without constitutional safeguards, including, without limitation, proper notice and an opportunity to be heard. 115. Plaintiffs are entitled to a declaratory judgment that Defendants’ termination of the TSA Program is unlawful and should be set aside.
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COUNT III: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 706(2)(A) (Defendants’ Conduct Should Be Declared Unlawful And/Or Set Aside Because It Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise
Not In Accordance With Law.) 116. All prior paragraphs are incorporated as if fully set forth herein. 117. The APA requires courts to “hold unlawful and set aside” agency action that is, among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if it is not the product of reasoned decision making. This means, among other things, that an agency must provide an adequate evidentiary basis for its action and consider all important aspects of the problem before it. 118. Defendants’ decision to terminate the TSA Program on June 30, 2018, long before Puerto Rico has recovered from Hurricane Maria, and before TSA evacuees are able to apply for and secure THA, or alternative housing, was made without any plan to assist TSA evacuees in securing housing. This decision was without reason and is arbitrary and capricious. 119. Defendants’ decision to terminate the TSA on June 30, 2018, violated the APA’s prohibition against “arbitrary and capricious” agency action. FEMA’s stated purpose for terminating this support for the class members was that the agency did not think DHAP is needed. This was contrary to the stark facts and the reality faced by the Puerto Rican victims of Hurricane Maria who still rely on
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FEMA assistance to survive and avoid homelessness. The stated purpose of terminating the program was not borne out by the facts, and was pretext for other unstated and ulterior purposes. FEMA decision to terminate the TSA program upon expiry of the TRO is also arbitrary and capricious.
120. FEMA has given inadequate consideration, if any, to the viability of possible alternatives for TSA evacuees, including Direct Rental Assistance, upon termination of their short-term housing benefits.
121. Plaintiffs and class members have suffered a legal wrong. Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to Plaintiffs and class members who have been adversely affected and aggrieved by FEMA’s arbitrary and capricious conduct.
122. An actual controversy exists between Plaintiffs and Defendants regarding whether Defendants’ termination of the TSA Program violates Section 706(2)(A) of the APA.
123. Plaintiffs are entitled to a judicial declaration that Defendants’ termination of the TSA Program as described above is unlawful and should be set aside.
COUNT IV: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 706(1) (Defendants Should Be Compelled To Provide The Relief They Have
Unlawfully Withheld Or Unreasonably Delayed.)
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124. All prior paragraphs are incorporated as if fully set forth herein. 125. The APA also requires courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(2)(A). As detailed above, Defendants have arbitrarily and capriciously decided to terminate benefits to TSA evacuees without any plan in place to transition them into longer-term housing. 126. Defendants’ refusal to activate DHAP or other relief (as they are obligated to do) before terminating benefits under the Transitional Shelter Assistance Program constitutes an unlawful withholding and/or an unreasonable delay of agency action—particularly in light of FEMA’s concurrent decision to evict Plaintiffs and class members from their homes. 127. FEMA has elected to evict Plaintiffs, class members and their families from their temporary homes, while simultaneously withholding benefits that FEMA has historically provided in similar situations, including after Hurricanes Katrina and Rita, to ensure that the termination of TSA does not result in homelessness or worse. 128. Plaintiffs are entitled to a permanent injunction restraining and/or enjoining Defendants from terminating TSA until Plaintiffs and class members have received sufficient THA to transition to longer-term housing; or Defendants implement an adequate replacement solution. Plaintiffs are further entitled to a permanent injunction compelling Defendants to accept and process all applications
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for THA from TSA evacuees for a reasonable period of time, and to notify applicants and class members concerning all forms of THA available to them and the criteria and conditions applicable to such assistance.
COUNT V: DECLARATORY JUDGMENT
28 U.S.C. § 2201 129. All prior paragraphs are incorporated as if fully set forth herein. 130. The Declaratory Judgment Act, 28 U.S.C. Section 2201, allows the Court to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 131. Plaintiffs are entitled to a declaration of their rights. Plaintiffs have a property interest in their current temporary shelter and are entitled to additional housing assistance under the Stafford Act. 132. Plaintiffs are further entitled to a declaration that (a) Defendants’ termination of the TSA Program as described above constitutes agency action that is unlawful and should be set aside under the Administrative Procedure Act; and that violates Plaintiffs and Class Members’ constitutional rights; (b) Defendants have unlawfully withheld and unreasonably delayed activation of any assistance or program to replace TSA; and (c) Defendants have unlawfully discriminated in disaster assistance.
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COUNT VI: EQUAL PROTECTION
U.S. Const. Amend. V (Defendants Conduct Has Denied And Continues To Deny TSA Evacuees
Equal Protection Under The Law.) 133. All prior paragraphs are incorporated as if fully set forth herein. 134. The Due Process Clause of the Fifth Amendment to the U.S. Constitution also contains an equal protection component that prohibits the federal government from denying equal protection of the law. 135. Plaintiffs and the class are entitled to the protections of the Fifth Amendment. 136. Defendants’ conduct towards Plaintiffs and the class constitutes discrimination on the basis of race, national origin and kind of American citizenship, all suspect classifications. FEMA has provided a lesser level of housing assistance to Plaintiffs and the class because they are Puerto Rican. 137. Defendants were substantially motivated by an intent to discriminate against Puerto Ricans on each of the foregoing bases. 138. FEMA’s policies have also had a disparate impact on Plaintiffs and the class in further violation of the equal protection component of the Due Process Clause.
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139. Defendants’ termination of TSA without an adequate housing alternative in place for Plaintiffs and the class is not necessary to achieve a compelling state interest; nor is it reasonably tailored to address that interest.
COUNT VI: DISCRIMINATION IN DISASTER ASSISTANCE
28 U.S.C. § 5151(a); 44 C.F.R. § 7.3 140. All prior paragraphs are incorporated as if fully set forth herein. 141. The Stafford Act provides that disaster “relief and assistance activities shall be accomplished in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.” 142. FEMA regulations provide that no person shall be excluded from or denied benefits or otherwise be subjected to discrimination on the ground of race color or national origin. 44 C.F.R. § 7.3 143. Defendants’ conduct towards Plaintiffs and the class constitutes discrimination on the basis of race, color, nationality, English proficiency and economic status. FEMA has provided a lesser level of housing assistance to Plaintiffs and the class because they are Puerto Rican. 144. Defendants were also substantially motivated by an intent to discriminate against Puerto Ricans on each of the foregoing bases.
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145. FEMA’s arbitrary actions have not only discriminated against victims of Maria based on the basis of economic status prohibited by the Stafford Act, but they have also violated the intent of Congress in providing disaster aid to assure continuing means of assistance to alleviate the suffering of those most affected by Hurricane Maria.
146. FEMA’s policies have also had a disparate impact on Plaintiffs and the class in further violation of the Stafford Act’s nondiscrimination provision.
VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs and Class Members respectfully request that this this Court: A. Issue a declaratory judgment that (1) Plaintiffs have a right to retain possession of their current shelter and are entitled to additional assistance under the Stafford Act; (2) Defendants’ termination of the Transitional Shelter Assistance Program as described above (a) constitutes agency action that is unlawful and should be set aside under the Administrative Procedure Act; and (b) violates Plaintiffs and Class Members’ constitutional rights; and (3) Defendants have unlawfully withheld and unreasonably delayed activation of any Temporary Housing Assistance or program to replace the Transitional
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Shelter Assistance Program; B. Issue a preliminary injunction restraining and/or enjoining Defendants
from terminating the Transitional Shelter Assistance Program pending the outcome of this litigation; C. Issue a permanent injunction restraining and/or enjoining Defendants from terminating the Transitional Shelter Assistance Program until either (1) Plaintiffs and Class Members have received sufficient Temporary Housing Assistance to transition to longer-term housing; or (2) Defendants implement a long-term replacement solution such as DHAP or other program that ensures continuing assistance to evacuees; D. Issue a permanent injunction requiring Defendants to: (1) continue to accept and process all applications for THA from TSA evacuees by telephone and online for a reasonable period of time following issuance of injunctive relief to enable appropriate application by the class of people unlawfully excluded or discouraged from applying for THA; and (2) notify applicants and class members concerning all forms of temporary assistance available to them and the criteria and conditions applicable to such assistance; and E. Award such further relief as the Court deems appropriate.
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Dated: July 12, 2018

Respectfully submitted,
By:/s/: Justin Jones Rodriguez Justin Jones Rodriguez MANATT, PHELPS & PHILLIPS, LLP Craig J. de Recat* (CA Bar No. 105567) Justin Jones Rodriguez* (CA Bar No. 279080) Eve L. Torres* (CA Bar No. 303651) 11355 West Olympic Boulevard Los Angeles, California 90064 (310) 312-4000
Brett Natarelli* (IL Bar No. 6297280) 20 N. Clark Street, Suite 3300 Chicago, Illinois 60602 (312) 626-1813
HECTOR E. PINEIRO LAW OFFICES Hector E. Piniero (BBO# 555315) 807 Main Street Worcester, Massachusetts 01610 (508) 770-0600
LatinoJustice PRLDEF Jose Perez* (NY Bar No. 2026649) Deputy General Counsel Natasha Bannan* (NY Bar No. 5021167) Associate Counsel 99 Hudson Street, 14th Floor New York, New York 10013 (212) 219-3360
Kira Romero-Craft* (FL Bar No. 49927)
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Case 4:18-cv-40111-TSH Document 28 Filed 07/12/18 Page 48 of 48
Managing Attorney, Southeast Office 523 West Colonial Drive Orlando, Florida 32804 (321) 418-6354
*Admitted Pro Hac Vice
Attorneys for Plaintiffs ELIZABETH DELGADO SANTOS, RAFAEL OCASIO BARRETO, BETHZAIDA CRESPO VICENTE, and IRIS OTERO, on behalf of themselves and all similarly situated individuals

CERTIFICATE OF SERVICE I, Justin Jones Rodriguez, certify that the within document, filed this 12th of July, 2018, via the Court’s electronic filing system, has thereby been served on all registered participants, and there are no unregistered participants.

320590894.4

/s/: Justin Jones Rodriguez Justin Jones Rodriguez

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 Case 4:18-cv-40111-TSH Document 38 Filed 07/19/18 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

______________________________________________________

)

ALIAN ASENCIO, ARACELIS VELEZ CRUZ,

)

DENISE NIEVES, YARITZA DE JESUS LOPEZ,

)

ROSA RIVERA, ANGEL LAURIANO MUÑOZ DE JESUS, )

BETHZAIDA CRESPO VICENTE, and IRIS OTERO,

)

on behalf of themselves and all similarly situated individuals, )

Plaintiffs,

)

)

v.

)

)

)

FEDERAL EMERGENCY MANAGEMENT AGENCY,

)

WILLIAM BROCK LONG, THOMAS VAN ESSEN,

)

and ALEJANDRO DE LA CAMPA,

)

Defendants.

)

______________________________________________________)

CIV. NO. 18-40111-TSH

SECOND CONTINUATION OF TEMPORARY RESTRAINING ORDER The Plaintiffs are all individuals who evacuated Puerto Rico in the aftermath of Hurricane Maria, which struck the island on September 20, 2018 causing catastrophic damage. The Federal Emergency Management Agency (“FEMA”) has been providing assistance to thousands of residents of Puerto Rico displaced by Maria, including the named Plaintiffs. In May, FEMA announced that as of June 30, 2018, it would discontinue Transitional Shelter Assistance (“TSA”) for such evacuees. 1 The Plaintiffs have filed suit against the Defendants seeking to prevent the termination of benefits under the TSA program for themselves and other similarly situated persons. They have asserted claims for relief for Deprivation of their Fifth Amendment Due Process Rights (Count I), and Violation of the Administrative Procedure Act, 5

1 In simple terms, the TSA program provides direct funding to hotels and motels, which serve as shelters for individuals and families who are forced to evacuate their damaged or destroyed homes due to a natural disaster.

Case 4:18-cv-40111-TSH Document 38 Filed 07/19/18 Page 2 of 2

U.S.C. §§ 706(2)(A) and (B), 5 U.S. C. § 706(1)(Counts II--IV). Plaintiffs also seek a Declaratory Judgment (Count V).
To give the parties an opportunity to fully brief the important and complex issues raised by Plaintiffs’ Complaint and corresponding motion for preliminary injunction, I previously issued an Order extending the Temporary Restraining Order (“TRO”) entered by Judge Sorokin on June 30, 2018. See Continuation of Temporary Restraining Order, dated July 3, 2018 (Docket No. 11). In that Order, I stated that unless I determined that a further hearing was necessary, I expected to issue a ruling on Plaintiffs’ motion for injunctive relief by the end of business on Monday, July 23, 2018. Accordingly, I extended the TRO until midnight July 23, 2018 (which enable Plaintiffs and the class to stay until checkout time on July 24, 2018).
Having reviewed the parties’ submissions, I find that a further hearing is necessary. That hearing will take place on Wednesday, August 1, 2018 at 10:00 a.m. I do not expect to hold an evidentiary hearing, however, if either party feels that presenting witnesses or other evidence would assist them in presenting their case, they should so advise the other party and the Court by July 23, 2018. I expect to issue my Order by August 6, 2018. Accordingly, the TRO entered by Judge Sorokin shall remain in place until least midnight August 6, 2018 (i.e., enabling Plaintiffs and the class to stay until checkout time on August 7, 2018). So Ordered:

Dated: July 19, 2018 3:35 p.m.

/s/ Timothy S. Hillman TIMOTHY S. HILLMAN DISTRICT JUDGE

2

 
 Case 4:18-cv-40111-TSH Document 63 Filed 08/22/18 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

______________________________________________________

)

ELIZABETH DELGADO SANTOS,

)

RAFAEL OCASIO BARRETO,

)

BETHZAIDA CRESPO VICENTE, and IRIS OTERO,

)

on behalf of themselves and all similarly situated individuals, )

Plaintiffs,

)

)

v.

)

)

)

FEDERAL EMERGENCY MANAGEMENT AGENCY,

)

WILLIAM BROCK LONG, THOMAS VAN ESSEN,

)

and ALEJANDRO DE LA CAMPA,

)

Defendants.

)

______________________________________________________)

CIV. NO. 18-40111-TSH

ORDER MEMORIALIZING THE PREVIOUSLY GRANTED THIRD CONTINUATION OF TEMPORARY RESTRAINING ORDER Background
The Plaintiffs are all individuals who evacuated Puerto Rico in the aftermath of Hurricane Maria, which struck the island on September 20, 2017 causing catastrophic damage. The Federal Emergency Management Agency (“FEMA”) has been providing assistance to thousands of residents of Puerto Rico displaced by Maria, including the named Plaintiffs. In May, FEMA announced that as of June 30, 2018, it would discontinue Transitional Shelter Assistance (“TSA”) for such evacuees.1 The Plaintiffs have filed suit against the Defendants seeking to prevent the termination of benefits under the TSA program for themselves and other similarly situated persons. In their original Complaint (Docket No. 1), they asserted claims for relief for Deprivation of their Fifth Amendment Due Process Rights (Count I), and Violation of

1 In simple terms, the TSA program provides direct funding to hotels and motels, which serve as shelters for individuals and families who are forced to evacuate their damaged or destroyed homes due to a natural disaster.

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the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (B), 5 U.S. C. § 706(1)(Counts II-IV). Plaintiffs also seek a Declaratory Judgment (Count V). On June 30, 3018, Judge Sorokin entered a Temporary Restraining Order (“TRO”), which I thereafter continued until July 23, 2018 (allowing the Plaintiffs and the class to stay until checkout time on July 24, 2018) to give the parties an opportunity to fully brief the important and complex issues raised by Plaintiffs’ Complaint and corresponding motion for preliminary injunction. See Continuation of Temporary Restraining Order, dated July 3, 2018 (Docket No. 19). After reviewing the parties’ submissions, I set the matter down for hearing today, August 1, 2018 and extended the TRO until August 6, 2018 (allowing the Plaintiffs and the class to stay until checkout time on August 7, 2018). See Second Continuation of Temporary Restraining Order, Dated July 19, 2108 (Docket No. 38).
On July 12, 2017, Plaintiffs filed a First Amended Complaint, as of right (Docket No. 28) in which named Plaintiffs Alian Asencio, Aracelis Velez Cruz, Denise Nieves, Yaritza De Jesus Lopez, Rosa Rivera, and Angel Lauriano Muñoz De Jesus were dropped from the suit while Elizabeth Delgado Santos and Rafael Ocasio Barreto were added. Plaintiffs also asserted new claims for violation of their equal protection rights under the Fifth Amendment (Defendants’ conduct has denied and continues to deny TSA evacuees from Puerto Rico equal protection under the law)(Count VI), and Discrimination in Disaster Assistance in violation of 28 U.S.C. §5151(a) and 44 C.F.R. § 7.3 (Count No. VII).
By its terms, the TRO, as in effect and continued from time to time, addressed only the claims raised by the Plaintiffs under the original Complaint. In their response to the Government’s memorandum in opposition to continued injunctive relief and at the preliminary injunction hearing, the Plaintiffs sought to have the Court consider whether a preliminary injunction is warranted based on the totality of their claims, including those raised in the First
2

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Amended Complaint. Rather than have the Plaintiffs file a subsequent TRO based on their new claims, I informed the parties that I would consider the new claims asserted in the First Amended Complaint. I granted the Government’s request for additional time to address those claims and orally informed the parties that I was extending the TRO until August 31, 2018. I expect to issue my Order by that date. Accordingly, the TRO entered by Judge Sorokin remains in place until least midnight August 31, 2018 (i.e., enabling Plaintiffs and the class to stay until checkout time on September 1, 2018).

So Ordered: Dated: August 22, 2018

/s/ Timothy S. Hillman TIMOTHY S. HILLMAN DISTRICT JUDGE

3

 
 Case 4:18-cv-40111-TSH Document 67 Filed 08/30/18 Page 1 of 25

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

______________________________________________________

)

ELIZABETH DELGADO SANTOS,

)

RAFAEL OCASIO BARRETO,

)

BETHZAIDA CRESPO VICENTE, and IRIS OTERO,

)

on behalf of themselves and all similarly situated individuals, )

Plaintiffs,

)

)

v.

)

)

)

FEDERAL EMERGENCY MANAGEMENT AGENCY,

)

WILLIAM BROCK LONG, THOMAS VAN ESSEN,

)

and ALEJANDRO DE LA CAMPA,

)

Defendants,

)

______________________________________________________)

CIV. NO. 18-40111-TSH

ORDER ON MOTION FOR PRELIMINARY INJUNCTION August 30, 2018

Background The Plaintiffs are all individuals who evacuated Puerto Rico in the aftermath of Hurricane Maria, which struck the island on September 20, 2017 causing catastrophic damage. The Federal Emergency Management Agency (“FEMA”) has been providing assistance to thousands of residents of Puerto Rico displaced by Maria, including the named Plaintiffs. In May, FEMA announced that as of June 30, 2018, it would discontinue Transitional Shelter Assistance (“TSA”) for such evacuees.1 The Plaintiffs have filed suit against the Defendants seeking to prevent the termination of benefits under the TSA program for themselves and other

1 In simple terms, the TSA program provides direct funding to hotels and motels, which serve as shelters for individuals and families who are forced to evacuate their damaged or destroyed homes due to a natural disaster.

Case 4:18-cv-40111-TSH Document 67 Filed 08/30/18 Page 2 of 25
similarly situated persons. In their First Amended Complaint (Docket No. 28), they assert claims for deprivation of their Fifth Amendment Due Process Rights (Count I), violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(2)(A), (B), 5 U.S. C. § 706(1)(Counts II-IV), deprivation of their Fifth Amendment Equal Protection Rights (Count VI) and Discrimination in Disaster Assistance in violation of 28 U.S.C. §5151(a) and 44 C.F.R. § 7.3 (Count No. VII). Plaintiffs also seek a Declaratory Judgment (Count V).2
On June 30, 3018, Judge Sorokin entered a Temporary Restraining Order (“TRO”), which I have continued until August 31, 2018 (allowing the Plaintiffs and the class to stay until checkout time on September 1, 2018) to give the parties an opportunity to fully brief the important and complex issues raised by Plaintiffs’ First Amended Complaint and corresponding motion for preliminary injunction. See Continuation of Temporary Restraining Order, dated July 3, 2018 (Docket No. 19), Second Continuation of Temporary Restraining Order, dated July 19, 2018 (Docket No. 38), and Order Memorializing The Previously Granted Third Continuation of Temporary Restraining Order, dated August 22, 2018 (Docket No. 63).
This Order addresses Plaintiffs’ request for a preliminary injunction, on behalf of themselves and all similarly situated individuals, to extend the provision of the emergency assistance which they are currently receiving. Specifically, Plaintiffs are asking that FEMA be ordered to continue providing the Plaintiffs with TSA until all eligible individuals either receive
2 On June 30, 2018, Plaintiffs filed a complaint (Docket No. 1) and simultaneously filed a motion for temporary restraining order and preliminary injunction (Docket No. 2). On July 12, 2018, Plaintiffs filed a First Amended Complaint, as of right (Docket No. 28). By that pleading, named Plaintiffs Alian Asencio, Aracelis Velez Cruz, Denise Nieves, Yaritza De Jesus Lopez, Rosa Rivera, and Angel Lauriano Muñoz De Jesus were dropped from the suit while Elizabeth Delgado Santos and Rafael Ocasio Barreto were added. Plaintiffs also asserted new claims for violation of their equal protection rights under the Fifth Amendment (Defendants’ conduct has denied and continues to deny TSA evacuees from Puerto Rico equal protection under the law)(Count VI) and Discrimination in Disaster Assistance in violation of 28 U.S.C. §5151(a) and 44 C.F.R. § 7.3 (Count No. VII). Over the objection of the Defendants, I have determined that for purposes of Plaintiffs’ motion for preliminary injunction, the First Amended Complaint is the operative document.
2

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temporary housing or find permanent housing. For the reasons set forth below, Plaintiffs’ request for a preliminary injunction is denied.
Facts Statutory and Regulatory Background
The Stafford Act The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§5121-5148 (“Stafford Act”), provides the statutory authority for the federal disaster response activities of FEMA. Congress enacted the Stafford Act to provide “assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from [major] disasters.” Id. § 5121(b). The Stafford Act is “designed to assist the efforts of [States affected by major disasters] in expediting the rendering of aid, assistance, and emergency services, and the reconstruction and rehabilitation of devastated areas.” Id. § 5121(a). The Stafford Act is triggered when the Governor of an affected State or Territory determines that State and local resources are insufficient to respond to a disaster and asks the President to declare an area a “major disaster.” 42 U.S.C. § 5170. If the President declares a “major disaster” or emergency, he retains the discretion to determine and designate the type of assistance available and the areas eligible to receive assistance. In any major disaster, the President may— (1) direct any Federal agency . . . to utilize its authorities and the resources granted to it under Federal law . . . in support of State and local assistance efforts . . . [and] (4) assist State and local governments in the distribution of medicine, food, and other consumable supplies, and emergency assistance.;
….
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and may “provide assistance essential to meeting immediate threats to life and property” including emergency shelter. 42 U.S.C. §§5170a , 5170b(a) and (a)(3)(B)(emphasis added). In simpler terms, the President may authorize, among other things, various forms of “Public Assistance” directed at State and local governments to assist them in performing work to prevent immediate threats to life, as well as various forms of “Individual Assistance” that provide assistance directly to individuals impacted by a disaster event. 42 U.S.C. §§ 5170– 5189b. FEMA is the federal agency the President has charged with implementing and carrying out major disaster assistance under the Stafford Act. Section 408 of the Stafford Act grants the President authority to provide temporary housing assistance to “individuals and households who are displaced from their predisaster primary residences or whose predisaster primary residences are rendered uninhabitable....” 42 U.S.C. § 5174(a)(1). Under section 408, the President, through FEMA, may provide two types of temporary housing assistance: (1) financial assistance, which is intended to pay for renting alternate housing accommodations; and (2) “temporary housing units, acquired by purchase or lease, directly....” 42 U.S.C. § 5174(c)(1); see 44 C.F.R. §206.110. FEMA has adopted regulations that set forth policies and procedures for determinations of eligibility of applicants for public and individual assistance, eligibility of work, and eligibility of costs for assistance under sections 402, 403, 406, 407, 408, 421(d), 502 and 503 of the Stafford Act, 42 U.S.C. §§ 5170a, 5170b, 5172, 5173, 5174, 5188, 5192 and 5193. The Stafford Act includes a limitation of liability provision which provides, in relevant part that: The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or
4

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duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter. 42 U.S.C § 5148.
Transitional Sheltering Assistance TSA is a Public Assistance program authorized under section 403 of the Stafford Act. The governing provision states that “Federal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from a major disaster...” 42 U.S.C. § 5170b(a). More specifically, section 403 authorizes FEMA to provide assistance for immediate threats, including emergency shelter. § 5170b(a)(3)(B). Such work is typically executed by local governments or nonprofits through use of congregate shelters. TSA is also intended to provide sheltering assistance for survivors whose homes are either uninhabitable or inaccessible due to disaster-related damage. The goal of the program is to reduce the number of survivors housed in congregate shelters. TSA is a Public Assistance program provided through direct federal assistance. Therefore, FEMA directly implements the sheltering assistance and the program is subject to a cost share with the requesting State or Territory. See 42 U.S.C. §5170b(b). As provided by regulation and FEMA’s internal policies, FEMA does not provide financial assistance through the TSA program directly to individuals. Before TSA can be implemented, this form of assistance must be requested by the State or Territory, and the applicable Presidential declaration must include a section 403/502 –Category B (Emergency Protection Measures) and a section 408 designation, making those particular forms of assistance available. The initial period of TSA assistance is typically 5 to 14 days from the date TSA is authorized by FEMA’s Assistant Administrator for Disaster Assistance. The period of assistance
5

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may be extended, in 14-day intervals, up to six months from the date of declaration upon request by the State.
Individuals and households may be considered eligible for TSA assistance if: • The individual or household registers with FEMA for assistance; • The individual or household passes identity verification; • The individual or household’s pre-disaster primary residence is located in a
geographic area designated for TSA; • As a result of the disaster, the individual or household is displaced from the pre
-disaster primary residence; and • The individual or household is unable to obtain lodging through another
source. FEMA’s internal policies further provide that transitional sheltering ends once the period of assistance interval expires unless there has been an extension requested by the State and granted by FEMA in its discretion.
Individual Assistance/Temporary Housing Assistance Distinct from the section 403 TSA program is section 408 of the Stafford Act, which authorizes FEMA to provide direct assistance to individuals and households in response to a major disaster or emergency declared by the President: [T]he President, in consultation with the Governor of a State, may provide financial assistance, and, if necessary, direct services, to individuals and households in the State who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means. 42 U.S.C. § 5174(a)(1) (emphasis added). So called “Individual Assistance” (“IA”) available under section 408 may include, inter alia, financial assistance to rent alternative housing, assistance for repairs to or replacement of homes damaged or destroyed by the disaster, and
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financial assistance for disaster-related needs such as replacement of personal property. See 42 U.S.C. §§ 5174(c), (e).
One form of IA is temporary housing assistance (“THA”), either in the form of financial assistance to “rent alternate housing accommodations, existing rental units, manufactured housing, recreational vehicles, or other fabricated dwellings … [and] may include the payment of the cost of utilities, excluding telephone service.” Id. §5174(c)(1)(A). Another form of THA is direct assistance whereby temporary housing units such as trailers and mobile homes. Id. §5174(c)(1)(B).
Hurricane Maria and its Aftermath On September 20, 2017, Hurricane Maria, a Category 5 storm, made landfall on the Caribbean island of Puerto Rico, a territory of the United States with over 3.4 million residents. That same day, President Donald J. Trump issued a major disaster declaration for the island. On October 25, 2017, the Governor of Puerto Rico formally requested that FEMA provide TSA for Puerto Ricans displaced by Hurricane Maria. Puerto Rico certified that it was responsible for the non-Federal cost share of all FEMA direct Federal assistance delivered under the Public Assistance program. On October 30, 2017, FEMA approved the request submitted by Governor Roselló for section 403 TSA and provided Puerto Ricans displaced by Hurricane Maria short-term sheltering that lasted for an initial term of 75 days, beginning on October 31, 2017 and ending on January 13, 2018. On December 23, 2017, at the request of the Governor, FEMA agreed to extend the TSA program through March 20, 2018, an additional 66 days. On March 8, 2018, again at the request of the Governor, FEMA agreed to further extend the TSA program through May 14, 2018, an additional 55 days. On May 3, 2018, again at the request of the Governor, FEMA agreed to a
7

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final extension of the TSA program until June 30, 2018, an additional 47 days. In his letter seeking the request, Governor Roselló stated that he was seeking the extension, in part, so that those receiving assistance could stay in the continental United States in a fixed location long enough for their children to finish the school year before returning to Puerto Rico. Moreover, by June 30, 2018, all of the congregate sheltering in Puerto Rico had closed. As of June 30, 2018, the TSA program had provided support to Puerto Rico for 242 days. This Court has since ordered that the TSA program be extended through August 31, 2018, an additional 62 days.
At all times throughout the duration of the TSA program, Puerto Rico was informed and acknowledged that the TSA program is intended to provide “short-term sheltering.” When FEMA granted the third extension on May 3, 2018, FEMA stated to the Governor and to the public that no further extensions of the program would be granted. FEMA’s intended end date for the TSA program aligned with the end of the 100% cost share between FEMA and Puerto Rico, which was extended by the President for 240 days from the disaster declaration and is now a 90% FEMA/10% Puerto Rico share in the costs for certain types of “emergency work,” which includes the TSA program. Therefore, effective June 30, 2018, Puerto Rico is responsible for covering 10% of the cost of all emergency work, including the TSA program. Governor Roselló did not request a further extension of the TSA program beyond the June 30, 2018 termination date. Any such extension would have been subject to the new cost-share arrangement.
In total, 7,032 TSA eligible applicants checked into participating TSA hotels since the genesis of the program. As of July 5, 2018, 1,006 eligible applicants remained at participating TSA hotels. To date, since the declaration disaster for Hurricane Maria, FEMA has disbursed over $2.4 billion in Public Assistance grants, over $1.1 billion for Individuals and Households, and over $92 million in implementing the TSA program.
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Discussion In deciding a motion for a preliminary injunction, “a district court weighs four factors: (1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest.” Jean v. Massachusetts State Police, 492 F.3d 24, 26–27 (1st Cir. 2007); Quincy Cablesystems, Inc. v. Sully’s Bar, Inc., 640 F. Supp. 1159, 1160 (D.Mass.1986).
Likelihood of Success on the Merits The Defendants assert that Plaintiffs cannot show they are likely to succeed on the merits of their claims because (1) under the Stafford Act, FEMA is immune from all non-constitutional claims, including Plaintiffs claims under the APA; (2) the Court lacks jurisdiction over Plaintiffs’ claims for injunctive relief because the government has not waived its sovereign immunity;(3) Plaintiffs’ procedural due process claims fails because they do not have a protected property interest in continued TSA until such time as the obtain THA; (4) Plaintiffs’ substantive due process claim fails because Plaintiffs do not have a recognized liberty or property interest in housing and FEMA’s discontinuation of the TSA program does not shock the conscience, (5) the remedy which Plaintiffs seek, i.e., the implementation of FEMA’s Individuals and Households Program, i.e., section 408 assistance, is already in place; and (6) Plaintiffs’ Equal Protection and discrimination claims were not part of their original complaint, or their emergency motion for a TRO or preliminary injunction and therefore, should not be considered by the Court. If they are considered, the claims fail because Plaintiffs cannot establish that there were treated differently from applicants seeking relief in entirely different disasters, that is, since
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every disaster is unique, they cannot establish that they are similarly situated to those other applicants.
Plaintiffs’ Due Process Claims Procedural Due Process
The Fifth Amendment to the United States Constitution guarantees that the federal government will not deprive its citizens of property without due process of law. U.S. Const. amend. V. To prevail on their procedural due process claim, Plaintiffs must first establish that they have a property interest in continued TSA, which is protected by the Constitution. “Property interests are not created by the constitution itself. ‘Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source’ and ‘that secure certain benefits and that support claims of entitlement to those benefits.’” Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 735 (5th Cir.2008) (citation to quoted case omitted). Government benefit programs give rise to a property interest— but only when a claimant has an entitlement to the benefit:
The ‘mere existence of a governmental program or authority empowered to grant a particular type of benefit to one such as the plaintiff does not give the plaintiff a property right, protected by the due process clause, to receive the benefit, absent some legitimate claim of entitlement—arising from statute, regulation, contract, or the like—to the benefit.” Id. (citation to quoted case omitted). Plaintiffs assert they have a property interest in continued assistance under the TSA program protected by the Due Process Clause through either the Stafford Act and its regulations, or an independent source such as FEMA’s conduct in in administering the housing assistance programs. They also assert that because they were found eligible for assistance under the TSA program, they are “entitled” to THA benefits. FEMA, on the other hand, argues that the
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assistance provided to the Plaintiffs under the TSA program is not an entitlement— it is a discretionary benefit, which is not afforded protection under the Due Process Clause.
Whether the Stafford Act or Its Accompanying Regulations Create a Property Interest in Continued TSA Benefits
Plaintiffs assert that FEMA must continue the TSA program until such time as they transition into longer-term THA because the enabling statute and regulations give them a claim of entitlement to such benefits (and therefore, create a property interest protected by the Constitution). In support, Plaintiffs cite to Ass’n of Cmty. Orgs. For Reform Now, Inc. v. Fed. Emergency Mgmt. Agency, 463 F.Supp.2d 26 (D.C. D.C. 2006) in which the court granted injunctive relief to thousands of evacuees of Hurricanes Katrina and Rita whose section 403 benefits had been terminated and who also had been denied section 408 benefits.3 Specifically, the court found that the plaintiffs/evacuees had “a protectable property right in the housing assistance administered by FEMA which cannot be deprived without due process of law.” However, as pointed out by FEMA, that decision was appealed to the D.C. Circuit Court of Appeals and was, effectively, overturned. As part of its appeal, FEMA sought a stay of the of the lower court’s order requiring it to immediately reinstate section 403 TSA benefits and to pay TSA benefits that the evacuees would have been entitled to from September 1, 2006 (the date FEMA terminated the benefits) to November 30, 2006 (the date that the court issued its order requiring FEMA to restore such benefits). The D.C. Circuit granted the stay. See Ass’n of Cmty. Organizations for Reform Now, Inc. v. Fed. Emergency Mgmt. Agency, No. 06-5403, 2006 WL
3 The evacuees had sought a TRO to prevent termination of their section 403 benefits, which was denied by the court. However, the court strongly advised FEMA to keep the section 403 benefits in place until a final ruling issued on the plaintiffs’ request for a preliminary injunction. Nonetheless, FEMA terminated all but 113 households and two of the named plaintiffs in that case—for them, FEMA extended assistance under the TSA program for thirty additional days.
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3847841, at *1 (D.D.C. Dec. 22, 2006). In denying plaintiffs/appellees motion for
reconsideration, the D.C. Circuit stated:
Upon reexamination of the parties’ submissions relating to the motion for stay, we doubt plaintiff-appellees are likely to succeed on their claim that they have a property right to benefits under section 403, which FEMA has terminated and which the district court awarded as a remedy. Insofar as plaintiff-appellees claim a property right in section 408 benefits, which they have neither received nor shown their eligibility for, we find it likely that Heckler v. Lopez, 463 U.S. 1328, 104 S. Ct. 10, 77 L. Ed. 2d 1431 (1983), prevents this court from upholding the district court's injunction. Ass’n of Cmty. Orgs. for Reform NOW, Inc. v. Fed. Emergency Mgmt. Agency, 2007 U.S. App.
LEXIS 929, *1-2 (D..D.C. Jan. 16, 2007). The injunction was ultimately vacated after the appeal
was voluntarily dismissed. See Ass’n. of Cmty. Orgs. for Reform Now, Inc. v. Fed. Emergency Mgmt. Agency, No. 06-5403, 2007 US App Lexis 929 (D.C. Cir. Apr. 30, 2007).4 While the D.C.
Circuit’s per curiam unpublished opinion cannot be cited as binding precedent, it does
undermine Plaintiffs’ reliance on the district court’s Acorn ruling. Plaintiffs’ suggestion that the
D.C. Circuit was addressing the court’s authority to reinstate benefits as opposed to terminating
them as in this case, is a distinction without meaning.
More to the point, Plaintiffs’ argument is undermined by the express language of sections
403 and 408 of the Stafford Act, which speak in discretionary terms, not absolutes: “Federal
agencies may on the direction of the President, provide assistance essential to meeting immediate
threats to life and property resulting from a major disaster...” 42 U.S.C. § 5170b(a)(emphasis
added). Likewise, section 408 contains a permissive grant of authority to FEMA to provide
assistance, “the President, in consultation with the Governor of a State, may provide financial
4 As previously noted, in support of their argument that they have a property interest in section 403 benefits, Plaintiffs cited to the district court’s ruling in Acorn granting injunctive relief to the plaintiffs/evacuees. Counsel for the Plaintiffs now acknowledge that the injunction was vacated by the D.C. Circuit. I accept counsels’ representation that they were unaware of the D.C. Circuit’s opinion, which was unpublished, and did not mean to mislead the Court.
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assistance, and, if necessary, direct services, to individuals and households in the State who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means.” 42 U.S.C. § 5174(a)(1)(emphasis added). In interpreting these provisions, this Court is not writing on a clean slate. As other courts have held, neither the language of the Stafford Act nor the implementing regulations use mandatory language. See, e.g., Ridgely, 512 F.3d at 735-36; see also Pride v. FEMA, Civ. No. 1:1CV22-HSO-JMR, 2013 WL 6048153 (like section 408 financial assistance benefits, section 408 direct housing benefits are discretionary and therefore, there is not constitutionally protected property interest in receiving such benefits); Cf. Konashenko v. Fed. Emergency Mgmt. Agency, No. 12-CV-3034 SJF WDW, 2014 WL 1761346, at *8 (E.D.N.Y. Apr. 29, 2014)(since FEMA had discretion to decide whether to award plaintiff funds for the sea wall destroyed by Tropical Storm Irene, she had no reasonable expectation that she would get the benefit, and therefore, there is no protected property interest in the benefits themselves).
Plaintiffs point out that section 403 does not include a termination date for benefits— suggesting that Congress thus intended that once granted, TSA continues until such time as the applicant is transitioned into THA. However, as the Ridgely court stated with respect to an analogous argument regarding continued entitlement to section 408 assistance: “it is unsurprising that no termination provision can be found in section 408 or the regulations, as such a provision would only be necessary if there were a stream of benefits to terminate.” Id., at 739. Similarly, given that section 403 and its regulations do not mandate that assistance be provided indefinitely once awarded, or at least until the applicant is transition into the THA program, there is no need for a termination provision.
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I agree with FEMA that Plaintiffs’ assertion that they have an entitlement to continued TSA benefits is even more tenuous in this case than in Ridgely, which is a factually similar case. In this case, the Governor of Puerto Rico has not requested that assistance under the TSA program be extended.5 I find this of importance given how the program is structured.6 Unlike section 408 benefits, the TSA program is a Public Assistance program, that is, FEMA is providing assistance to Puerto Rico, not the individual Plaintiffs. While the federal government initially pays 100% of the costs associated with the program, as of June 30, 2018, Puerto Rico is required to pay 10% of the costs, while the federal government continues to pay 90%. This amount is set by the President and cannot be altered. Thus, should this Court find that the Plaintiffs are entitled to continued TSA benefits, it would be requiring Puerto Rico to incur monetary obligations which it to date, it has not agreed to take on. While it is not clear to me that this result should play a factor in the analysis of whether Plaintiffs have an entitlement to continued TSA benefits, I agree with FEMA that it at least raises the question of whether the Plaintiffs themselves have a legitimate “claim” to such benefits-- particularly in light of the
5 Plaintiffs’ counsel represented at the hearing that media reports establish that since this case commenced, the Governor of Puerto Rico has repeatedly stated that he is in favor of the TSA benefits being extended. While I have no reason to doubt counsel’s representation, on the record before me, the Governor has not officially requested that the TSA program be continued.
6 I agree with Plaintiffs that 44 C.F.R. § 206.255 does not necessarily require a state or local official to submit a request for continued assistance under section 403. However, FEMA also relies on its internal policy, in particular its Public Assistance and Policy Guide (“PAPPG”), in support of its contention that extension of TSA benefits in this case requires a request from the Governor of Puerto Rico. First, FEMA’s policy to require an express request for TSA benefits makes sense given that the cost sharing arrangement mandated under section 403 and its regulations, discussed infra. Additionally, Plaintiffs’ argument that the PAPPG itself does not require the Governor of Puerto Rico to seek an extension because nowhere in the policy does it require that such a request be made by the “governor” is specious. The PAPPG requires that “State, Territorial, Tribal, and local government Applicants” must submit a request for funding for non-congregate environments (such as hotels). See Id., at pp. 66-67. Given that the “applicant” is a governmental entity, in this case a Territory, the person making the request must necessarily be the Governor, or someone else with authority to bind it.
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previously cited authority finding that there is no protected property interest in section 408 benefits, which are paid directly to disaster victims.
For the reasons stated above, I find that the Plaintiffs have not established they have a protected interest in receipt of TSA benefits under the Stafford Act and its accompanying regulations. Furthermore, that the Plaintiffs have been deemed eligible for assistance under the TSA program does not create a property interest in continued assistance under that program. Cf. Ridgley, 512 F,3d at 736 (given that section 408 and the regulations do not provide entitlement to financial assistance, that plaintiffs were previously found eligible for assistance is of no matter). Additionally, I find the Ridgley court’s reasoning persuasive in denying Plaintiffs’ assertion that they have a property interest in obtaining section 408 benefits. Whether Plaintiffs have a Property Interest in continued assistance under the TSA Program as a
result of FEMA’s Conduct in in administering the Program Plaintiffs’ assertion that FEMA’s conduct and actions have created an expectation of continued TSA benefits fares no better. More specifically, Plaintiffs assert that FEMA’s policies and practices in regards to carrying out the TSA program creates a property interest in their continued receipt of TSA, until such time as they are transitioned into the THA program. Plaintiffs acknowledge that on the record before me, there is insufficient evidence to make a determination on this claim. Plaintiffs, therefore, ask the Court continue the TRO and grant a period of fact finding followed by an evidentiary hearing. I agree with the Plaintiffs that on this record, they have not established a likelihood of success on the merits this issue. On the contrary, the rules and regulations cited by the Defendants establish that FEMA requires certification from the State, Territory or local government whose citizens seek initial or continuing disaster relief. Moreover, those policies and regulations make clear that the disaster relief does not continue indefinitely, but rather is terminated when FEMA, in its discretion, determines that assistance is
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no longer necessary. It is possible that further discovery will shed light on FEMA’s practices and policies sufficient to permit the Plaintiffs to raise a triable issue as to whether such policies and practices create a property interest in continued TSA. However, Plaintiffs have failed to establish on the record as is, or to convince the Court that upon obtaining such further discovery, they are likely to success on the merits of this claim. 7
I find that the Plaintiffs have failed to establish that they have a protected property interest under sections 403 and 408 of the Stafford Act. For that reason, it is not necessary for me to address their assertion that the notices they have received (to the extent that they have received notice) are inadequate— primarily because the notices do not provide any information regarding their right to appeal, or their right to housing or transitional assistance. For the reasons stated, I find that Plaintiffs are unlikely to succeed on the merits of their procedural due process claim.
Substantive Due Process Like their procedural due process claim, to state a claim for violation of their substantive due process rights, Plaintiffs must first establish that they have “a valid property interest in a benefit that was entitled to constitutional protection… .” Konashenko, 2014 WL 1761346, at *10; see also Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir. 2005)(as in procedural due process context, plaintiff must, as a condition precedent to stating a claim, identify a constitutionally protected interest in life, liberty or property). I have previously
7 Plaintiffs’ request that the Court extend the TRO while further discovery and an evidentiary hearing is conducted on this issue is based on their reading of the Fifth Circuit’s ruling in Ridgley. I agree with the Plaintiffs that the Fifth Circuit recognized that FEMA’s policies and procedures could create a property interest in continued benefits under section 408; the court remanded the case for the parties to conduct discovery on that issue and for the district court to hold an evidentiary hearing. However, in doing so, the court vacated the lower court’s grant of a preliminary injunction in favor of the plaintiffs, which ordered that FEMA continue rental assistance for victims of Hurricanes Katrina and Rita, because it found that the plaintiffs had not established a likelihood of success on the merits. Likewise, I find that the Plaintiffs are entitled to further develop this claim, however, given that I do not find that, even accepting their arguments, they have shown a likelihood of success on the merits, the TRO shall not remain in place.
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found that Plaintiffs have failed to establish that they have a property interests in continuing benefits under section 403 and/or obtaining benefits under section 408 of the Stafford Act. Therefore, their substantive due process claim also fails. Moreover, “[t]o establish a substantive due process claim, a plaintiff must demonstrate an ‘abuse of government power that shocks the conscience’ or ‘action that is legally irrational in that it is not sufficiently keyed to any legitimate state interests.’” Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001). Little need be said on this issue, simply put, Plaintiffs cannot establish that FEMA’s discontinuance of their TSA benefits “shocks the conscience,” for substantive due process purposes, see Avalos v. City of Glenwood, 382 F.3d 792, 800 (8th Cir. 2004)(actionable substantive due process claims involve a “ ‘level of ... abuse of power’ ... ‘so “brutal” and “offensive” that [they do] not comport with traditional ideas of fair play and decency), or is “legally irrational in that it is not keyed to any legitimate [government] interest.” See Amsden v. Moran, 904 F.2d 748, 754 n.5 (1st Cir. 1990). Therefore, Plaintiffs request for injunctive relief based on their claim for violation of their substantive due process rights is denied.
Plaintiffs’ Equal Protection Claims Plaintiffs assert that the Defendants have violated their right to equal protection of the laws by discriminating against them on the basis of race, national origin and kind of American citizenship by providing a lesser level of housing assistance because they are Puerto Rican8. The Equal Protection Clause of the Constitution requires that all persons similarly situated be treated in the same manner. In order to establish a violation of the Equal Protection Clause, a plaintiff must “show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on ‘impermissible considerations such as
8 Defendants have cited authority questioning whether “Puerto Ricans” are a protected class. For purposes of this Order, I assume that they are a protected class.
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race… .’” Harlen Assocs. v. Inc Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)(citation to
quoted case omitted). “Conclusory allegations of selective treatment are insufficient to state a
claim. Rather, a plaintiff must allege purposeful and systematic discrimination by specifying
instances in which [the plaintiff] [was] singled ... out for unlawful oppression in contrast to
others similarly situated.’” Id. at 573 (internal quotation marks and citation to quoted case
omitted). Laday v. Ramada Plaza Hotel Laguardia, No. 07-CV-0450 (BMC), 2007 WL 526613,
at *4 (E.D.N.Y. Feb. 13, 2007).
The formula for determining whether individuals or entities are ‘similarly situated’ for equal protection purposes is not always susceptible to precise demarcation. See [Coyne v. City of Somerville, 972 F.2d 440, 444–45 (1st Cir. 1991)] (“[T]he ‘line between sufficient facts and insufficient conclusions is often blurred.’ ”) … [H]owever, ‘[t]he test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer’s art of distinguishing cases, the ‘relevant aspects’ are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.’ Barrington Cove Ltd. P’ship v. Rhode Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.
2001).
Plaintiffs have cited to what they claim are “stark differences” in FEMA’s treatment of
victims of Hurricanes Harvey and Irma versus its treatment of Puerto Rican victims of Hurricane
Maria. More specifically, they allege that Hurricane Harvey and Irma victims received seven
extensions of TSA benefits whereas Plaintiffs received only three, which amounted to two
months of additional benefits to victims of Hurricanes Harvey and Irma. They also cite to the
fact that FEMA had approved over twenty-two times the amount of financial assistance for
victims of Hurricane Harvey as it did in the same amount of time for victims of Hurricane Maria.
However, Plaintiffs fail to address how the three hurricanes impacted the areas which were
affected, what the amount of property damage from the three storms and the overall financial 18

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impact on the affected areas. Plaintiffs do acknowledge, but then downplay the fact that there were twice as many people impacted by Hurricane Harvey (7.6 million) than were impacted by Hurricane Maria (3.8 million), and over six times as many people were affected by Hurricane Irma (19.3 million). Moreover, as pointed out by FEMA, every disaster is unique and requires different responses. For example, Hurricanes Harvey and Irma hit the mainland, while Hurricane Maria hit Puerto Rico, which is an island and is more logistically difficult to reach and assess. FEMA also points out that the damage sustained in each hurricane varied: Hurricane Harvey caused mostly flooding damage while Hurricane Maria caused mostly wind damage. These are only some difference which undermine Plaintiffs’ equal protection claim—Defendants’ Supplemental Brief (Docket No. 56) details many more. Simply put, as the record currently stands, Plaintiffs have failed to make out a viable equal protection claim because they have not established either that they were similarly situated to other hurricane victims, and even if they were, that they were treated differently. Therefore, I finds that they are unable to establish a likelihood of success on the merits with respect to their Equal Protection Clause claim.9
Plaintiffs’ Discrimination Claim Plaintiffs assert that as Puerto Ricans, they have been discriminated against under the Stafford Act in violation of 42 US.C. §5151(a) (barring discrimination based on race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.) I agree with Defendants that in their initial briefing of this claim, Plaintiffs, at best, make conclusory allegations that discontinuance of the TSA program constitutes discrimination against them
9 In their First Amended Complaint, Plaintiffs raise both a disparate treatment and a disparate impact claims. However, in their memorandum, they brief only the disparate treatment claim. Therefore, I find that for purposes of their motion for preliminary injunction, they have waived their disparate impact claim.
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based on their race, color, English proficiency, or economic status.10 In their supplemental
memorandum, they allege that they have been the victims of disparate treatment. They then
assert that based on their allegations set forth in the First Amended Complaint, they have made a
prima facie case of disparate treatment and therefore, the burden shifts to the Defendants to
establish, through admissible evidence, that the allegedly unlawful action was taken for a
legitimate non-discriminatory reason. If the Defendants do so, they assert that the burden then shifts back to them to show that the Defendants’ proffered reasons are pre-textual.11
In asserting that they have made out a prima facie case, Plaintiffs cite to the same
allegations made in their equal protection claim: that Hurricane Harvey victims’ benefits under
the TSA program have been extended 7 times to their 3— which amounts to two additional
months, and that financial assistance to Hurricane Harvey was approved much more quickly and
at a much higher amount. Given the differences in the disasters, including the number of people
and the amount of property affected, the type of damage and the logistical differences in the
locations where the hurricanes hit, I have grave concerns that the Plaintiffs have made out a
prima facie case, despite the low threshold for doing so. Assuming they have, FEMA has
rebutted their claims by providing detailed evidence regarding the scope of damage caused by
Hurricanes Harvey and Rita versus the scope of the damage to Puerto Rico, the difference in the
type of damage, the difference in the number of persons affected and the logistical difficulties as
10 In their initial briefing of this claim, Plaintiffs simply made a conclusory statement that for the same reasons they should prevail on the equal protection claim, they are likely to succeed this claim. It is not until there supplemental brief filed after the hearing that Plaintiffs flesh out this argument. As pointed out by the Defendants, Plaintiffs have failed to raise a number of legal arguments in their initial briefs—instead, they have routinely chosen to make new arguments and cite new authority in their reply or supplemental briefs. Generally, I do not address matters raised for the first time in supplemental pleadings, however, given the importance of the issues raised by the Plaintiffs, I have done so in this case. Should Plaintiffs appeal this decision, I strongly suggest that they be more diligent in regards to their briefing to the First Circuit, which strictly enforces the rule that arguments raised for the first time in a reply brief are deemed waived.
11 For purposes of this Order, I will accept Plaintiffs assumption that the McDonnell Douglas burden shifting analysis applies to this claim. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
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the result of Puerto Rico being an island located well off the United States mainland. FEMA has also provided a breakdown of the amount of financial assistance given to Texas (Harvey), Florida (Irma) and Puerto Rico (Maria), which establish that aid to Puerto Rico has been in line with the aid provided to Texas and Florida. Additionally, I do not discount the fact that FEMA terminated the Plaintiffs’ TSA, at least in part, because the Governor of Puerto Rico did not seek an extension beyond June 30, 2018. The burden thus falls on the Plaintiffs to establish that the Defendants’ reasons are pre-textual. Plaintiffs argue that if I find that the Defendants have met their burden (as I have), they should be allowed to file a supplemental brief for purposes of establishing pretext. While Plaintiffs will have the opportunity to develop their claim going forward, whether they are entitled to an injunction is based on the record before me as it currently stands. Based on that record, I cannot find that they have established a likelihood of success on the merits of this claim.12
Plaintiffs’ APA Claims Plaintiffs assert that Defendants conduct violates the following provisions of the APA: (1) section 706(2)(B), because FEMA’s termination of the TSA program as to them is contrary to law; and (2) section 706(2)(A) because FEMA’s termination of the TSA program as to them without any plan to transition them into the THA program is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law. Additionally, Plaintiffs assert that pursuant to section 706(1), the Court should compel FEMA to continue the TSA program as to them until it provides eligible evacuees sufficient THA housing. Defendants argue that this Court should
12 In support of many of their claims, Plaintiffs cite to McWaters v. Fed. Emergency Mgmt. Agency, 436 F. Supp.2d 802, 816 (E.D. La. 2006), in which the court found a protectable property interest in THA benefits because it determined that once an applicant was deemed eligible, FEMA did not have the discretion to deny assistance; the court also found that FEMA’s discretion was further limited by the Stafford Act’s non-discrimination provision. However, it has been widely recognized that the holding in McWaters has been abrogated by the Fifth Circuit’s ruling in Ridgely.
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deny Plaintiffs’ request for injunctive relief under the APA for lack of jurisdiction because, as to these non-constitutional claims, there has been no wavier of sovereign immunity.
When bringing suit against the United States or its agencies, a plaintiff must establish that the United States has waived sovereign immunity with respect to its claims. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). “A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092 (1996). I find the Defendants well written and comprehensive discussion of the issue of sovereign immunity compelling and on point and therefore, adopt it in toto. In so doing, I reiterate my previous finding that FEMA’s actions under the Stafford Act with respect to granting both the section 403 and 408 assistance are discretionary. The Stafford Act’s discretionary function exception to governmental liability provides that the United States will not be liable for:
[A]ny claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter. 42 U.S.C. § 5148. This discretionary funding exception encompasses FEMA’s decision to terminate the TSA program as to the Plaintiffs and this Court lacks jurisdiction to address Plaintiffs’ APA claims. Accord St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 325–26 (5th Cir. 2009)(Stafford Act, its regulations, and related agency guidance do not give rise to mandatory duty. They instead permit discretionary, policy-oriented choices that cannot be basis for the court's subject matter jurisdiction). Therefore, Plaintiffs are not entitled to injunctive relief based on such APA claims.
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I have found that Plaintiffs have failed to establish a likelihood of success on the merits of any of their substantive claims. Under these circumstances, I find that they are unlikely to prevail on their claim for a declaratory judgment.
Risk of Irreparable Harm “Only a viable threat of serious harm which cannot be undone authorizes exercise of a court’s equitable power to enjoin before the merits are fully determined.” Massachusetts Coal. of Citizens with Disabilities v. Civil Def. Agency & Office of Emergency Preparedness of Com. of Massachusetts, 649 F.2d 71, 74 (1st Cir. 1981) (citing Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975)). “A preliminary injunction will not be issued simply to prevent a mere possibility of injury. A presently existing, actual threat must be shown.” Id. Although Defendants attempt to do so, there can be no serious dispute in this case that the Plaintiffs have established irreparable harm. The Plaintiffs are evacuees from a catastrophic natural disaster13 in which they have lost most, if not all, of their real and personal property and been forced to locate to areas thousands of miles away. At this point, the Plaintiffs and other potential class members who have not been transitioned into the THA program do not appear to have any place to go once the TSA program ends.
Balance of Equities The balance of hardships also tips considerably in favor of the Plaintiffs. I agree with the Plaintiffs that they will suffer disproportionate hardship given that to date, they have not been able to secure alternative housing and therefore, may well be rendered homeless.
13 Puerto Rico’s death toll from Hurricane Maria has recently been revised to 2,975, making it one of the deadlines national disasters in United States history,
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Public Interest The public interest is a more neutral factor. As the Defendants point out, it is in FEMA’s interest to maximize the resources for providing assistance to the public during national disasters. It is also in the public interest that FEMA be allowed to act in accordance with its statutory mandate. At the same time, as pointed out by the Plaintiff, there is a strong public interest in helping to provide for the well-being of its citizens, particularly those who have been victims of natural disasters.
Plaintiffs Request for Preliminary Injunction is Denied While there are factors that weigh in the Plaintiffs’ favor, I have found that they are unlikely to succeed on the merits of any of their claims. Given that likelihood of success on the merits is the touchstone of the preliminary injunction inquiry, their request for injunctive relief is denied. While this is the result that I am compelled to find, it is not necessarily the right result. However, the Court cannot order that Defendants to do that which in a humanitarian and caring world should be done-- it can only order the Defendants to do that which the law requires.
Conclusion Plaintiffs’ Emergency Motion for A Temporary Restraining Order Or Preliminary Injunction And Declaratory Relief (Docket No. 2) is denied as to their request for a preliminary injunction. By its terms, the TRO has been extended until August 31, 2018. While by my Order I am vacating the TRO, Plaintiffs and the other evacuees will need time to make alternative housing arrangements. Therefore, I am ordering that the Defendants and their agents refrain from terminating the program which provides the payment for shelter for the Plaintiffs (including the class) until midnight September 13, 2018 (i.e., enabling Plaintiffs and the class to stay until checkout time on September 14, 2018). I strongly urge the parties to work together to find
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Case 4:18-cv-40111-TSH Document 67 Filed 08/30/18 Page 25 of 25 temporary housing, or other assistance to the Plaintiffs and other members of the class prior to that date. So Ordered:
/s/ Timothy S. Hillman TIMOTHY S. HILLMAN DISTRICT JUDGE
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