U.S. District Judge Sam Sparks told Texas RioGrande Legal Aid and Federal Emergency Management Agency lawyers on Monday to work out their differences so that Sparks doesn’t have to issue an order in TRLA’s suit against FEMA.
Neither side will like the order he issues, Sparks said at the close of a hearing on TRLA’s motion for a preliminary injunction.
TRLA filed suit on Aug. 13 in the U.S. District Court in Austin, alleging that FEMA had violated TRLA’s First Amendment rights by denying the legal aid organization’s attorneys access to FEMA’s disaster recovery centers to offer legal assistance to survivors. TRLA has been denied access to the centers since June because it would not accept the terms of a 1993 agreement between FEMA and the American Bar Association-Young Lawyers Division. A provision in the agreement states that attorneys who are allowed inside the recovery centers are prohibited from counseling clients to sue FEMA or other governmental entities over the denial of benefits.
However, FEMA has changed its requirements, which could moot Texas RioGrande Legal Aid Inc., et al. v. Federal Emergency Management Agency. An Aug. 24 letter to ABA officials from Carlos J. Castillo, FEMA’s assistant administrator for disaster assistance, clarifies FEMA’s agreement with the ABA-YLD, which oversees disaster legal services nationwide.
A provision in the 1993 agreement provided that while operating under the agreement, participating attorneys “may not initiate, or counsel a disaster victim to initiate litigation against the federal, state or local governments, with respect to obtaining disaster assistance.”
In his letter, which FEMA filed in the federal court along with a motion to dismiss, Castillo clarified that participating attorneys may assist disaster victims with the disaster assistance benefit process. Castillo also wrote that FEMA will no longer set limits on participating attorneys’ ability to advise or represent applicants on litigation matters and will no longer enforce that provision in the agreement.
Craig Cannon, the ABA-YLD national coordinator for the disaster legal services program and a senior associate with Womble, Carlyle, Sandridge & Rice in Winston-Salem, N.C., also testified during the Monday hearing before Sparks that eliminating the restriction will improve the program. The ABA-YLD now will be able to utilize lawyers most qualified to provide services to disaster victims, Cannon testified.
“TRLA and other legal aid organizations are in a much better position today than when they filed this lawsuit,” James A. Hemphill, a partner in Austin’s Graves, Dougherty, Hearon & Moody, says in an interview after the hearing. Hemphill is one of the private practice lawyers who has assisted TRLA with First Amendment issues in the suit.
Jerome A. Wesevich, TRLA’s director of litigation and lead counsel for the suit, contended in his closing argument that the legal aid organization still does not know what the ABA-YLD agreement requires.
But Sparks interrupted Wesevich’s argument to point out that FEMA excluded TRLA because the legal aid organization would not abide by the provision in FEMA’s agreement with the ABA-YLD � a provision that Spark said was illegal. But that provision is now gone, Sparks said.
“What irritates you is they switched horses in mid-stream,” Sparks told Wesevich.
“The truth of the matter is it’s time to talk, not act,” the judge added.
Katherine Beaumont, assistant U.S. attorney for the Western District in San Antonio, contended in her closing argument that the case has nothing to do with the First Amendment. However, Sparks was not interested in listening to Beaumont’s argument either and again suggested that the two sides “sit down and talk.”
“That’s a perfect solution, your honor,” Beaumont responded.
Sparks said he would keep the case under advisement and ordered the lawyers for TRLA and FEMA to report to him in 30 days on what progress they had made in reaching a solution.
“Remember, it’s the people who have had disasters hit them hard that all of you are here to help,” Sparks told the lawyers.
David Hall, TRLA’s executive director, says in an interview after the hearing that he’s fairly optimistic TRLA and FEMA can work out a solution. “We worked well with them up until six weeks ago,” Hall says.
In a separate interview, Beaumont says that Sparks encouraged the two sides to talk in a very forceful way. “I also think that in his comments he made it clear that if he has to write an order, neither party is going to be happy,” she says.
Although Sparks did not act on TRLA’s motion for a temporary injunction, one of the attorneys assisting the legal aid group believes the TRLA suit accomplished something.