# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 23

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**____________ Holy Cross College, Incorporated,**  doing business as **Holy Cross School,** 
Plaintiff

— Appellant **,**

versus
**Deanne Criswell,** in her capacity as Administrator of **the Federal Emergency Management Agency; Federal Emergency**  **Management Agency,**
Defendants —Appellees

**.**

**______________________________** Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:21

- CV

- 1658

**______________________________** Before **Elrod ,**  **Willett ,**  and **Duncan ,**  Circuit Judges

**. Per Curiam**  **:** ***** Following Hurricane Katrina, the Federal Emergency Management Agency (“ **FEMA** ”) approved public assistance funding to Holy Cross College so that it could replace its destroyed campus. **FEMA** later disallowed , or “deobligated,” some of that funding because, in its view, Holy Cross spent

**_____________________**

* This opinion is not designated for publication. See **5th Cir. R.** 47.5. United States Court of Appeals Fifth Circuit 

### FILED May 22, 2024 Lyle W. Cayce Clerk Case: 23-30085 Document: 85-1 Page: 1 Date Filed: 05/22/2024No. 23

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2it on ineligible improvements to its campus and failed to follow federal contract

- procurement requirements. After it lost two agency appeals, Holy Cross filed suit against **FEMA** and its administr ator, Deanne Criswell, in federal court arguing that the agency acted arbitrarily and capriciously. The district court granted summary judgment for **FEMA** . Because we agree that Holy Cross is not statutorily protected from deobligation , and because
**FEMA** ’s decisions were not arbitrary and capricious , we **AFFIRM**

. I Holy Cross is a 174

- year

- old private middle and high school for boys in New Orleans, Louisiana. In August 2005, flood waters and high winds from Hurricane Katrina destroyed the school’s historic c ampus in the Ninth Ward. Because of this damage , Holy Cross was eligible for public

- assistance grant funding to replace its facilities under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121

– 5207

. Following the storm , **FEMA** provided public

- assistance grant funding to the State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (“ **GOHSEP** ”)

. From this grant, private nonprofits like Holy Cross, state agencies, and local governments were eligible to apply for subgrant funding to rebuild their facilities

. Holy Cross submitted applications called project worksheets (“ **PW** s”) to **FEMA** for funding t o replace four of the school’s flood

- damaged campus buildings: the High School ( **PW** 12965), Middle School ( **PW** 13237), Central Services Plant ( **PW** 13136), and Administration Building ( **PW** 13333)

. Holy Cross also constructed a temporary campus, which opened i n January 2006.

**FEMA** approved these reques ts and obligated grant funding based on the estimated cost of the eligible scope of work for the project. This obligated
money was to be paid on a reimbursement basis , in which Holy Cross would submit eligible costs for reimbursement. In its approval, **FEMA** explained Case: 23-30085 Document: 85-1 Page: 2 Date Filed: 05/22/2024No. 23

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3 the limitations o n the uses of federal funding. In its Central Services Plant approval, for example, **FEMA** explained that the project qualified for “replacement ,” meaning that federal funding would cover the reasonable costs to replace the building to its pre

- disaster stat e. T he Central Services Plant was not eligible, however, for improvements beyond what was required to replace the original building, and **FEMA** explained that any costs associated with improvement s to the building would become Holy Cross’s responsibility. **FEMA** also explained that its approval documents contained only estimates of reasonable costs, and that the final federal share of costs would be determined at the project’s closeout when adjustments would be made for unreasonable costs or costs associated with improvements. In its approval, **FEMA** also gave Holy Cross permission to rebuild its campus in a new location, the Gentilly neighborhood of New Orleans. C onstruction began there in 2008. Holy Cross completed construction of the
M idd le and H igh S chool buildings in 2009, the A dministration B uilding in 2010, and the C entral S ervices Plant in 2011.

In 2015 at the projects’ closeout , the Department of Homeland Security ’s Office of Inspector General completed an audit of Holy Cross’s

rece ipt of $89.3 million in federal funding from **FEMA** under the Stafford Act. The audit concluded that Holy Cross did not follow federal procurement standards in awarding 21 contracts totaling $82.4 million and recommended that **FEMA** d isallow that money as “ineligible contract

costs

. ”

**FEMA** only partially followe d the audit’s recommendation. Instead of disallowing the recommended $82.4 mil lion in federal grant funding,
**FEMA** planned to disallow

— or “deobligate,” as it puts it

— only $7,998,081

. **FEMA** conclud ed that Holy Cross spent federal grant funds on ineligible improvements to its campus that went beyond the permissible Case: 23-30085 Document: 85-1 Page: 3 Date Filed: 05/22/2024No. 23

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4 replacement costs to rebuild to the building’s pre

- Katrina state

. **FEMA** invited Holy Cross to supply additional documentation supporting its claimed costs during final inspection for **FEMA** to consider and explained that “[s]hould Holy Cross supply adequate supporting documenta tion,
**FEMA** may reinstate costs accordingly.” Holy Cross appealed this decision to **FEMA**

. During that appeal , **FEMA** twice requested supporting documentation from Holy Cross and met with representatives from the school on several occasions

. Holy Cross sent **FEMA** a PowerPoint presentation and some of the requested documentation. Ultimately, **FEMA** granted the first appeal in part, allowing an additional $3 million in reasonable costs, reducing the deobligated amount

to $4,829,095.90

. Holy Cro ss again appealed , and **FEMA** denied the appeal in full

. The
agency concluded that Holy Cross made improper improvements to its campus and failed to follow federal contract

- procurement standards, so it affirmed the approximately $4.8 million deobligation

. Holy Cross then filed suit against **FEMA** and its administrator, Dean ne Criswell, under the Administrative Procedure Act seeking an order vacating **FEMA** ’s order and remanding to the agency . Both parties filed

cross

- motions for summary judgment, and the district court granted Criswell and **FEMA** ’s motion and denied Holy Cross’ s. Holy Cross appeals and presses two arguments. First , Holy Cross contends that the Stafford Act protects Holy Cross from deobligation

. Second , it argues that **FEMA** acted arbitrarily and capriciously.

II

We review a district court’s grant of summary judgment de novo , applying the same standards as the district court. Lexon Ins. Co., Inc. v. Fed. Case: 23-30085 Document: 85-1 Page: 4 Date Filed: 05/22/2024No. 23

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5 Deposit Ins. Corp. , 7 F.4th 315, 320 (5th Cir. 2021) (citing Spring St. Partners

IV, L.P. v. Lam , 730 F.3d 427, 435 (5th Cir. 2013)).

Under the **APA** , the Court must uphold the agency’s action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The court’s “task is to determine whether the agency exa mined the pertinent evidence, considered the relevant factors, and articulated a reasonable explanation for how it reached its decision.” Associated Builders & Contractors of Tex., Inc. v. Nat’l Lab. Rels. Bd. , 826 F.3d 215, 219 (5th Cir. 2016) (citation and quotation marks omitted). “This standard is highly deferential; we apply a presumption of validity.” Id. at 220. However, this review is “not toothless.” Wages & White Lion Invs., L.L.C. v. U.S. Food & Drug Admin. , 16 F.4th 1130, 1136 (5th Cir. 2021 ) (citation omitted)

. III

A Holy Cross first contends that the Stafford Act prohibits **FEMA** from deobligating these funds

. Holy Cross cites 42 U.S.C. § 5205(c), which protects “State or local government[s]” from “ reimbursement or any other penalty for any payment made under this chapter **”** at a project’s closeout where three requirements are met. 1 Even though Holy Cross concedes that § 5205(c) “does not specifically mention private nonprofits , ” it contends

**_____________________**

1 The three requirements are: (1) the payment was authorized by an approved agreement spe cifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished. § 5205(c). Holy Cross conte nds, and **FEMA** does not dispute, that these requirements are met with respect to its grant funding. Because we find that private nonprofits may not invoke § 5205(c), we need not address whether Holy Cross has met the requirements

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6 that § 5205(c) nonetheless protects it from **FEMA** ’s disallowance

. We disagree. “The task of statutory interpretation begins and, if possible, ends with the language of the statute.” Franco v. Mabe Trucking Co., Inc. , 3 F.4th 788, 792 (5th Cir. 2021) ( quoting Trout Point Lodge, Ltd. v. Handshoe , 729 F.3d 481, 486 (5th Cir. 2013) ). “ When interpreting statutory language, words are given their ordinary, plain meanings, and language must be enforced unless ambiguous. ” United States v. Moore , 71 F.4th 392, 395 (5th Cir. 2023) ( citation omitted)

. We are “authorized to deviate from the literal language of a statute only if the plain language would lead to absurd results, or if such an interpretation would defeat the intent of Congress.” Kornman & Assocs., Inc. v. United States , 527 F.3d 443, 451 (5th Cir. 2008) (citation omitted)

. Here, the text of the Stafford Act is clear and unambiguous: § 5205(c) protection extends to “State or local government[s],” and to no other
group. 2 § 5205(c). Holy Cross cites no statutory ambiguit y, and indeed, the school concedes that § 5205(c) “does not specifically mention private nonprofits” as a protected group

. Ordinarily, we “resist reading words or elements into a statute that do not appear on its face.” Bates v. United States , 522 U.S. 2 3, 29 (1997). Further, Congress mentioned private nonprofits elsewhere in the Stafford Act, but chose not to include them here. For example, the Stafford Act specifically allows for federal grants for both “State or local government[s]” and “private non profit[s]

. ” § 5172(a)(1)(A)

– (B)

. But

**_____________________**

2 **FEMA** cites an agency policy statement that supports this plain reading of th e text

. It states that “Section 705(c) [of the Stafford Act, codified at 42 U.S.C. § 5205(c)] does not apply to private nonprofit [subgrantees].” Although this policy statement may be “entitled to respect” under Skidmore v. Swift & Co. , 323 U.S. 134 (194 4) , the parties have

no t adequately briefed this doctrine. We need not resort to Skidmore deference here. Case: 23-30085 Document: 85-1 Page: 6 Date Filed: 05/22/2024No. 23

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7 Congress extended § 5205(c) protection only to “State or local government[s ,] ” and not private nonprofits. Id. § 5205(c). W here Congress “includes particular language in one section of a statute but omits it in another,” we “generally presume” that Congress acted “ intentionally and purposely in the disparate inclusion or exclusion.” Rodriguez

- Avalos v. Holder , 788 F.3d 444, 4 51 (5th Cir. 2015) (quoting Brown v. Gardner , 513 U.S. 115, 120 (1994) )

. Holy Cross also argues that despite the text’s clarity, private nonprofit subgrantees receive a sort of derivative protection because nonprofits can only receive funding through a “ State or local government” grantee, which would be protected under § 5205(c). T aken to its logical conclusion, Holy Cross’s argument would extend § 5205(c) protect ion to every subgrantee who receives public assistance funding , because that funding must fi rst pass through a state grantee

. At any rate, t he Stafford Act specifically contemplates **FEMA** ’s
recovery of funds from subgrantees like nonprofits elsewhere

. **FEMA** is statutorily instructed to “collect” federal disaster grant funding from those that received it if the federal funding “ duplicates benefits available to t he person for the same purpose from another source. ” 42 U.S.C. § 5155(c )

. Holy Cross’s reading of § 5205(c) would nullify this provision, which it cannot do

. See Doe v. KPMG , LLP , 398 F.3d 686, 688 (5th Cir. 2005) (citation omitted) (“When interpreting a statute, we start with the plain text, and read all parts of the statute together to produce a harmonious whole.”). Holy Cross also advances several policy arguments for the benefit of nonprofit protection

. Policy arguments cannot displace the text as enacted by Congress, who “ has the right to make th[e] choice” of who receives § 5205(c) immunity , even if that choice is “ill

- advised

. ” Miss. Poultry Ass’n, Inc. v. Madigan , 31 F.3d 29 3, 310 (5th Cir. 1994). Case: 23-30085 Document: 85-1 Page: 7 Date Filed: 05/22/2024No. 23

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8 Because § 5205(c) does not protect private nonprofits, Holy Cross may not invoke that provision to avoid deobligation

. B Holy Cross also contends that **FEMA** acted arbitrarily and capriciously. It presses five arguments in suppor t of this contention, none of which succeed

.
1 Holy Cross first argues that **FEMA** improperly failed to consider that Holy Cross used its own funds to pay for improvements to its campus.
Under the **APA** , an agency decision is arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before th e agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass ’ n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983); see also Sierra Club v. U.S. Env’t P rot. Agency , 939 F.3d 649, 663

– 64 (5th Cir. 2019). In other words, we must ensure that an agency

“ reasonably consider ed the relevant issues and reasonably explain ed the decision.” Data Mktg. P ’ ship, LP v. U.S. Dep’t of Lab

. , 45 F.4th 846, 855 (5th Cir. 2 022) (quoting Fed. Commc’ns Comm’n v. Prometheus Radio Project , 592 U.S. 414 , 423 (2021)). The Stafford Act contemplates federal funding for private nonprofit s
to repair, restore, reconstruct, or replace a facility to its pre

- disaster design. See 42 U.S.C. § 5172(a)(1) ( B). But generally, a private nonprofit may not use Case: 23-30085 Document: 85-1 Page: 8 Date Filed: 05/22/2024No. 23

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9 federal funding to improve upon a facility’s pre

- disaster design. 3 Id. If it wishes to const ruct improvements , it must do so at its own expense

. During **FEMA** ’s review, it concluded that Holy Cross “constructed/installed multiple items” that did not appear in the pre

Katrina campus , like a “five

- story tower,” “new cupula,” and “two sets of architectural double doors” in the Administrative Building

. It also identified “costs related to heating, cooling, and air condition ing [] and electrical work” in the Central Services Plant that exceeded the facility’s pre

- disaster functionality. Because Holy Cross submitted pay applications and requested federal funding for these i neligible costs, **FEMA** deobligated those costs

. Holy Cross argues that it paid for these items with privately raised funds , and that **FEMA** ignored this fact when making its decision

. In the main, Holy Cross’s argument fails because **FEMA** ’s review

was to ensu re that federal funds were not used on improvements. Because Holy Cross sought federal funding for ineligible improvement costs , **FEMA** deobligated costs associated with those improvements. As the district court explained , it is immaterial to **FEMA** ’s review whether Holy Cross paid for improvements with its own dime, so long as Holy Cross does not also use federal dollars for th ose ineligible improvements. **FEMA** thus has not “failed to consider an important aspect of the problem” as Holy Cross maintains. Motor Vehicle Mfrs. Ass ’ n of U.S., Inc

. , 463 U.S. at 43 ; see also Data Mktg. P ’ ship, LP , 45 F.4th at 855

. Further, Holy Cross has never once supported its clai m that the school used private instead of federal funds for the se improvements , despite having the opportunity to do so in an agency audit, multiple requests for

**_____________________**

3 Improvements are permitted in some circumstances with prior approval. 44 C.F.R. § 206.203(d)(1). Case: 23-30085 Document: 85-1 Page: 9 Date Filed: 05/22/2024No. 23

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10 supplemental documentation, two administrative appeals, a district court proceeding, and the present appeal

. Huawei Techs. USA, Inc. v. Fed. Commc’ns Comm’n , 2 F.4th 421, 453 (5th Cir. 2021) (rejecting argument that Federal Communications Commission judgment was arbitrary and capri cious where appellant did “not point us to record evidence” on the “relevant data”). We will not sift through a fifteen

- thousand

- page record to make Holy Cross’s case for it. R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist. , 703 F.3d 801, 811 (5th Ci r. 2012) ( “A party ’ s argument must contain appropriate citations to relevant parts of the record. ” (citing Fed. R. App. P. 28(a)(9))). When pressed on this point at oral argument, Holy Cross cited several documents, none of which remedy the failure of its brief

. First, Holy Cross cited a spreadsheet that supposedly contains a complete cost

- breakdown for all money

— public and private

— spent during construction . This thirteen

page document contains hundreds of line items for everything from tu bas to land purchases, but it provides only aggregate costs of buildings ( e.g. , more than $ 26 million for the Administration Building ) without identifying the component costs of individual construction costs like the “ towers ” or “cupula” identified by **FEMA**

. At any rate, the spreadsheet does not identify who paid for these aggregate building costs , and it curiously lists all construction costs for the four buildings in the “rebuild” column of the spreadsheet ( i.e. , eligible for federal funding) instead of “non

- rebuild , ” suggesting that Holy Cross considered all building costs reimbursable by **FEMA**

. As the district cour t cogently put it , this spreadsheet raises “more questions than it answers

. ” Holy Cross also cite d affidavits from its chief fin ancial officer and former architect, but again, neither of these documents suggests that Holy Cross paid for any ineligible costs. Holy Cross also argued that **PW** 13136 Case: 23-30085 Document: 85-1 Page: 10 Date Filed: 05/22/2024No. 23

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11 and a **GOHSEP** study reveal that **FEMA** knew about the improvements to the Central Services Plant when it accepted the plans

. But in those documents , **FEMA** acknowledged the increased square footage and explicitly refused to pay for it , explaining that the associat ed costs “will not be eligible for **FEMA** funding

. ”

From the word go, **FEMA** ha s instructed Holy Cross to trac k “all contracts and invoices” for review at project closeout. In the **PW** approvals, i t warned, “T his large project will be closed in accordance with the grantees closeout p rocedures and 4 4 [C.F.R. §] 13 . Cost[s] outside of the original scope of work (i.e., improvements) must be documented accordingly and are the responsibility of the applicant.” **FEMA** followed through on those warnings at closeout . It identified specific ineligible improvements, invite d Holy Cross to submit supplemental documents to justify the costs , and eventually deobligated the costs when Holy Cross failed to do so. On the record before us, we cannot say that **FEMA** failed to account for “‘relevant factors’ or evinced a ‘clear error of judgment.’” Data Mktg.
P ’ ship, LP , 45 F.4th at 855

. This argument fails.

2 Holy Cross next argues that **FEMA** failed to articulate a “rational relationship between the facts and **FEMA** ’s decision.” According to Holy Cross , it provided “all of the information requested by **FEMA** to show that the funds used for improvements were private.” An agency acts “reasonably and permissibly” when it “examines the relevant data and articulates a satisfactory explanation for its action includi ng a rational connection between the facts found and the choice made.” El Paso Elec. Co. v. Fed. Energy Regul. Comm’n , 832 F.3d 495, 503 (5th Cir. 2016) (citation omitted) (alterations adopted)

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12 Here, **FEMA** ’s appeal decisions respond in detail to the
sup plemental documentation that Holy Cross submitted and articulate the reasons for the agency’s actions, tying those reasons to the facts. Indeed, in the first appeal , **FEMA** reduced the disallowed amount in direct response to supplemental documentation provi ded by Holy Cross. In the second appeal, **FEMA** reviewed Holy Cross’s submitted documentation but concluded that it failed to “distinguish between eligible and ineligible work.” **FEMA** did not fail to establish a rational connection between the facts and deci sion. Fed. Energy Regul. Comm’n v. Elec. Power Supply Ass ’ n , 577 U.S. 260, 295 (2016), as revised (Jan. 28, 2016) (rejecting similar argument where Federal Energy Regulatory Commission “addressed that issue seriously and carefully, providing reasons in support of its position and responding to” arguments). This argument also fails.

3 Holy Cross next argues that **FEMA** was arbitrary and capricious in not relaxing contract procurement standards for the c onstruction of Holy Cross’s permanent Gentilly campus because of the exigent circumstances following Hurricane Katrina

. Recipients of public assistance funding must follow federal and state

contract

- procurement standards when contract ing for eligible work. Federal law generally requires competitive contract procurement, meaning bidding is required. 2 C.F.R. § 200.320(b). In exigent circumstances, however,
**FEMA** relaxes these contract

- bidding requirements. Id. § 200.320(c)

. 4

**_____________________**

4 Section 200.320(c) relaxes federal contract p rocurement standards , but it does not relax cost eligibility criteria

. S o , **FEMA** ’s deobligation based on Holy Cross’s improvements are not at issue here

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13 In the 2015 audit, **FEMA** re cognized that “Holy Cross worked under exigent conditions” to open its temporary campus in January 2006

— just a few months after the hurricane made landfall

— and relaxed procurement protocols for several contracts associated with that opening. T he agency

ex plained though that the exigent circumstances ended when the temporary campus reopened, so Holy Cross was required to follow procurement protocols for the permanent campus in Gentilly . In Holy Cross’s second administrative appeal, **FEMA** concluded that the school failed to show how exigent circumstances applied to the permanent Gentilly contracts. We
agree. Both parties cite favorably a **FEMA** manual , which “defines both exigency and eme rgency as situations that demand immediate aid or action” to “avoid, prevent, or alleviate serious harm or injury, financial or otherwise.” **FEMA** , Procurement Disaster Assistance Team Field Manual
52

– 53 (Oct. 2021)

. In its 2015 audit, **FEMA** explained that it consider ed circumstances “exigent when lives or properties are at

- stake or, as in this case, when a city or community needs to reopen its schools.”

W e are hard

- pressed to say that **FEMA** was arbitrary and capricious in concluding that the exigent circumst ances ended when the temporary school opened. **FEMA** ’s conclusion that any exigency ended when Holy Cross resumed classroom instruction and could fulfill its primary purpose, albeit in a temporary setting, was at least “logical and rational.” Sierra Club , 939 F.3d at 664. And when Holy Cross started to contract for its permanent campus, more than a year had elapsed since the storm, and the temporary campus had already opened. Holy Cross makes a thin attempt to show that exigent circumstances continued after the temporary school opened, asserting that it took “years” for the city to return to a sense of normalcy because of the “scale of Case: 23-30085 Document: 85-1 Page: 13 Date Filed: 05/22/2024No. 23

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14 destruction” in New Orleans following Hurricane Katrina

. We sympathize with the plight of New Orleanians and others affected by the historic destruction of Hurricane Katrina , and we recognize th e immense struggle facing those that helped to rebuild the Gulf Coast

. B ut Holy Cross’s assertions do not show how following regular procurement pr otocols would have cause d Holy Cross “serious harm or injury, financial or otherwise.” For example, Holy Cross does not show that contract costs were still significantly heightened at the time it sought contracts for its permanent campus, or that it would have been unable to follow the normal bidding procedures required by federal law. See Balt. Gas & Elec. Co. v. Fed. Energy Regul. Comm’n , 954 F.3d 279, 281

– 86 (D.C. Cir. 2020) (concluding that an

a gency reasonably found that a company did not submit fili ng in a “reasonable period of time” when it “failed to offer an adequate reason for the delay”). This argument also fails.

4 Next, Holy Cross argues that **FEMA** erred in using a cost

- estimating software, **RS** Means, 5 to estimate the costs of ineligible impr ovements. As discussed above, **FEMA** instructed Holy Cross to retain invoices

to verify at closeout that “only eligible portions of the construction are included in the **FEMA** funding.” But w hen Holy Cross invoiced $6.4 million in construction costs for the campus C entral S ervices Plant , **FEMA** concluded that the building

— which was rebuilt with 4,600 additional square feet and improved **HVAC** and plumbing systems

— included ineligible improvements. Because Holy Cross’s documents did not sufficiently track

**_____________________**

5 **RS** Means “is a cost estimator that accounts for regional differences in labor and materials costs by using zip codes to factor in the specific costs of nearly any type of construction in a particular area of the country

. ” In re CertainTeed Fiber Cement Siding Litig. , 303 F.R.D. 199, 205 (E.D. Pa. 2014)

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15 costs , **FEMA** was unable to isolate the precise improvement costs from the total invoiced amount. So, **FEMA** used **RS** Means to calculate the reasonable cost of a hypothetical, unimproved building that could replace the damaged facility. The invoiced costs, minus the **RS** Means estimate, results in the estimated improvement costs ineligible for federal funding. Although it concedes that “ **FEMA** can use whatever method it desires in determining reasonablenes s” of costs, Holy Cross contends that it was arbitrary and capricious to use **RS** Means, which is a pre

- construction

cost

- estimating tool that should not be used to estimate post

- construction costs. The school also argues that **FEMA** arbitrarily and capriciou sly “changed methods,” disregarding Holy Cross’s reliance on the initial approval of plans. Specifically, the school relied on **FEMA** ’s initial approval of the proposed plan for the C entral S ervices Plant , which conditionally approved the building’s cost. Holy Cross suggests **FEMA** used a different

cost

- estimating method when approving the plan, and later “chang[ed] methods [,] ” us ing **RS** Means to deobligate. Holy Cross cites nothing in support of this contention , and its argument fails for several reasons.

First , **FEMA** ’s app roval of the Central Services Plant **PW** explained that its estimate was not a blank check. Rather, as explained to Holy Cross,

t he final federal share of costs would be determined at the proje ct’s closeout when adjustments would be made for unreasonable costs associated with improvements.

Second , **FEMA** routinely uses **RS** Means to calculate post

construction costs, and the use of the software is contemplated in **FEMA** ’s manuals. See, e.g. , In the Matter of City of Hattiesburg , 22

- 1 B.C.A. (CCH) ¶ 37986 (July 29, 2021) (“ However, if appropriate local data cannot be developed , **FEMA** guidance recommends the use of industry standard construction cost estimating resources, such as RSMeans. ”). Indeed, the Case: 23-30085 Document: 85-1 Page: 15 Date Filed: 05/22/2024No. 23

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16 record reveals that **FEMA** used **RS** Means to estimate costs for the Central Services Plant when providing its initial cost estimate approvals , in direct conflict with Holy Cross’s uncited suggestion to the contrary

. Instead of **RS** Means, Holy Cross asked **FEMA** in its administrative appeals to calculate ineligible improvement costs using a “proportionality model , ” which would cal culate improvement costs solely on the amount of
square

- footage overbuild. For example, because the Central Services Plant

was one

- third bigger than the previous building, only one third of the total cost should be deobligated under the proportionality mo del. But **FEMA** explained the factual and legal errors of this model and rejected it. “It is not for [the court] to ask whether [the] decision was the best one possible or even whether it was better than the alternatives.” Dep’t of Com. v. New York , 139 S . Ct. 255 1 , 2571 (2019) (citation and internal quotation marks omitted). Rather, the agency need only “ examine the relevant data and articulate a satisfactory explanation for its action . . . .” Motor Vehicle Mfrs. Ass ’ n of U.S., Inc

. , 463 U.S. at 43. It did so here.

Third , Holy Cross fails to articulate how **FEMA** improperly changed its policy. W hen an agency changes course, it must consider “serious reliance interests” that its “longstanding policies may have engendered” along with “alternati ves that are within the ambit of the existing policy.” R.J. Reynolds Vapor Co. v. Food & Drug Admin. , 65 F.4th 182, 189 (5th Cir. 2023). As addressed above , **FEMA** has consistently used **RS** Means to estimate improvement costs. Further, **FEMA** repeatedly inst ructed Holy Cross to “[t]rack any improvements” and explained that any improvement costs would be Holy Cross’s responsibility. That policy

— a refusal to use federal money for improvements to the Central Services Plant

— never changed. The agency later acted under that long

- stated policy to deobligate funds associated with the Central Service Plant’s overbuild

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17 This argument also fails.

5 Finally, Holy Cross argues that **FEMA** ’s deobligation was arbitrary and capricious because **GOHSEP** and **FEMA** approved the i nitial plans. It maintains tha t “ **GOHSEP** and **FEMA** approved all plans for any ‘improvements’ to the facilities.”

Not so. **FEMA** ultimately deobligated improvement costs associated with four buildings: the High School, Middle School, Central Services Plant, and Administration Building. In the approvals for each of these buildings,
**FEMA** explained that the approved facility will “have the same function a nd equivalent capacity as pre

- disaster.” Holy Cross does not identify a single improvement that **FEMA** approved for these **PW** s for which it later deobligated funding

. I t is also unclear whether **GOHSEP** ever approved any of the improvements. To the extent it did , **GOHSEP** ’s approval is not binding on **FEMA ,**  as Holy Cross concedes in its briefing

. IV
Because § 5205(c) does not immunize private nonprofits from deobligation, and because **FEMA** was not arbitrary and capricious in its dealings with Holy Cross, we **AFFIRM**

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