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Court Affirms Another FEMA Trailer FTCA Dismissal

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By Robyn Hagan Cain on April 09, 2013 5:10 PM

Last year, the Fifth Circuit Court of Appeals ruled that displaced hurricane evacuees may not sue the Federal Emergency Management Agency (FEMA) for formaldehyde exposure under the Federal Tort Claims Act (FTCA) because the plaintiffs lacked subject matter jurisdiction.

That case only involved Mississippi plaintiffs, but the outcome doesn’t change when the plaintiffs hail from Louisiana.

Tuesday, the Fifth Circuit once again concluded that federal courts lack subject-matter jurisdiction to consider FEMA trailer formaldehyde exposure complaints under the FTCA.

The Louisiana plaintiffs' appeal focused on negligence claims relating to the government's selection and distribution of portable trailers as Emergency Housing Units (EHUs).

The plaintiffs alleged that the EHU trailers that FEMA provided for displaced Gulf Coast residents after Hurricanes Katrina and Rita jeopardized their health. The district court dismissed the claims, holding that they fell under the FTCA's discretionary-function exception.

The discretionary-function exception involves a two-part inquiry: whether the act "involves an element of judgment or choice" and whether the decision to engage in an act was susceptible to policy analysis. Here, the appellate court noted:

The government made a choice both to provide housing assistance and to utilize travel trailers as EHUs, satisfying the first part of the test, because FEMA "was under no contractual or legal obligation, under the Stafford Act or other federal legislation, to provide the EHUs to disaster victims in response to the disasters." ... Also, the decision of what would provide the safest, most feasible, convenient, and readily available housing assistance was grounded in "social economic, and political policy," meeting the second part of the test.

The appellate court similarly rejected the plaintiffs' negligent response and gross negligence appeals.

The FEMA trailer plan, while launched with good intentions, turned into an epic mess. Unfortunately for the displaced residents mired in that mess, there's no recourse against the government under the FTCA.

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