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A New Orleans federal judge has broken new ground in ruling that people eligible for federal disaster assistance have a constitutionally protected property interest in the benefits that they can expect to get. With a new hurricane season just beginning, lawyers for the plaintiffs say that the decision is important, noting that in times of narrowing entitlements, a court has found that the law provides a guarantee of emergency housing assistance for natural disaster victims applying to the Federal Emergency Management Agency (FEMA). U.S. District Judge Stanwood R. Duval Jr. held that the Robert T. Stafford Disaster Relief and Emergency Assistance Act requiring FEMA to provide assistance to all eligible applicants forms the “legitimate claim of entitlement” necessary for a property right protected by the due process clause. McWaters v. FEMA, No. 05-5488 (E.D. La.). The court also made permanent its December order temporarily enjoining and restraining FEMA from requiring housing assistance applicants to apply for Small Business Administration loans, and from terminating evacuees from temporary housing with less than two weeks’ notice. Howard O. Godnick, a corporate securities litigator at New York’s Schulte Roth & Zabel who worked on the case pro bono, said that the entitlement arises from the court buying the plaintiffs’ argument that the Stafford Act says “once you’ve satisfied the criteria for benefits, you get benefits.” First judicial criticism Godnick, who litigated the case with several public interest groups, local lawyers and four Schulte Roth colleagues, asserted that the ruling is “really groundbreaking, in the sense that it’s the first time any court-as far as we know-has found that people eligible for federal disaster assistance have a property interest.” Charles S. Miller, spokesman for the U.S. Department of Justice’s Civil Division, said that the government is still reviewing the opinion and has made no determination as to what its next step will be. FEMA had argued that all the plaintiffs’ claims should be dismissed because it had not waived its sovereign immunity. It also had contended that its alleged acts or omissions were discretionary in nature, thus immune from judicial review, according to Duval’s opinion. John C. Brittain, chief counsel and senior deputy of the Lawyers Committee for Civil Rights Under Law in Washington, which brought Schulte Roth into the case, noted that this is the first judicial criticism of FEMA’s severely criticized response to the Katrina disaster. Brittain and Godnick emphasized that the plaintiffs filed the action “to attack systemic problems in FEMA,” seeking declaratory and injunctive relief to ensure that FEMA would provide assistance to eligible plaintiffs, not monetary damages. The original complaint, subsequently amended, was a class action filed last November on behalf of 13 plaintiffs whose homes were destroyed during Hurricane Katrina and who had applied but failed to receive any disaster-related housing assistance from FEMA. Brittain said that filing the action caused FEMA to change practices, such as the shared-household rule, under which disaster victims were denied FEMA assistance because they lived or shared the same address or telephone number of another applicant. While the court ruled for the plaintiffs on the property-interest issue, the court dismissed most of the 17 other claims on grounds that they either were legally insufficient or require legislative rather than judicial action. For instance, the court said there was no evidence to show that applicants were delayed or denied assistance due to their economic status. Alfred L. Brophy, who teaches property, equity and administrative law at the University of Alabama School of Law, called the opinion interesting-and strange. “What the judge gave with one hand, he took away with the other,” Brophy said. He pointed out that while Duval found that there is a property right to FEMA assistance, he also said that applicants and recipients had gotten about as much due process from the overwhelmed agency as they were due.

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