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Harvest Family Church v. Federal Emergency Management Agency

United States District Court, S.D. Texas, Houston Division

December 7, 2017

Harvest Family Church, et al., Plaintiffs,
Federal Emergency Management Agency, et al., Defendants.



         Pending before the court are: (1) a motion for preliminary injunction (Dkt. 12) filed by plaintiffs Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God (collectively, “Plaintiffs”); (2) Plaintiffs' motion for temporary restraining order and request for hearing (Dkt. 59); and (3) an unopposed motion for leave to submit an amici brief (Dkt. 56) filed by Americans United for Separation of Church and State, American Civil Liberties Union, ACLU Foundation of Texas, Inc., Anti-Defamation League, Baptist Joint Committee for Religious Liberty, and Interfaith Alliance Foundation. Having considered the motions, the responses, the replies, the various amici briefs, and the applicable law, the court is of the opinion that (1) the motion for preliminary injunction should be DENIED; (2) the motion for temporary restraining order should be DENIED; (3) the request for hearing regarding the temporary restraining order should be DENIED; and (4) the motion for leave to submit an amici brief should be GRANTED.

         I. Background

         This is a First Amendment case. Plaintiffs, three churches, sue defendant Federal Emergency Management Agency (“FEMA”) alleging that a FEMA policy violates their rights under the Free Exercise Clause of the First Amendment. Dkt. 11 ¶¶ 74-85.

         On August 25, 2017, Hurricane Harvey made landfall in Texas. Dkt. 12 at 8. Harvey caused widespread damage to countless Texans, including the three plaintiff churches. Id. at 8-10. Collectively, Plaintiffs suffered damage to structures such as sanctuaries, a steeple, and a fellowship hall. Dkt. 11 ¶¶ 57-59, 72-73. The flooding and damage sustained during the storm left Plaintiffs' facilities in need of repair. Dkt. 12 at 11.

         The federal government immediately began to respond to the storm. Id. at 8. One form of relief available was under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”). Id. at 3. The Stafford Act authorizes the President of the United States to provide federal assistance when a natural disaster exceeds the state or local government's ability to respond. Id. Specifically, the Act includes a Public Assistance Program (“PA Program”), which allows for certain “private nonprofit” organizations (“PNPs”) to receive disaster relief grants from FEMA. Fed. Emergency Mgmt. Agency, Public Assistance Program and Policy Guide (2017), (“Policy Guide”).

         To receive disaster relief grants, a PNP must own or operate an “eligible facility.” Id. at 12. Among other requirements, an eligible facility includes “[a] facility that provides a non-critical, but essential government service.” Id. The Policy Guide lists eligible services, but also designates some services as ineligible. Id. Specifically, “[f]acilities established or primarily used for political, athletic, religious, recreational, vocational, or academic training, conferences, or similar activities are not eligible.” Id.

         When a PNP provides multiple services to its community, FEMA must determine the facility's primary use by reviewing the its “[tax] documentation, ” “[p]re-disaster charter, bylaws, and amendments, ” and “[e]vidence of longstanding, routine (day-to-day) use (e.g., a calendar of activities).” Id. FEMA explains:

“Primary use” is the use for which more than 50 percent of the physical space in the facility is dedicated. FEMA evaluates the entire structure when determining primary use; it does not separately address individual areas, such as floors, basements, or wings. Common space, such as bathrooms, hallways, lobbies, closets, stairways, and elevators, is not included when calculating mixed-use space.
If FEMA determines that 50 percent or more of physical space is dedicated to ineligible services, the entire facility is ineligible. If the facility is eligible, FEMA prorates funding based on the percentage of physical space dedicated to eligible services. The Applicant is responsible for the balance of costs to restore the facility and must restore the entire facility to receive funding for repairs to the eligible-use portions of the facility.

Id. at 17.

         Plaintiffs concede that they use more than 50 percent of the physical space in their facilities for religious activities. Dkt. 12 at 12. However, they argue that they meet all the other funding requirements, and are thus denied funding because they are religious institutions. Id.

         Plaintiffs ask the court to grant a preliminary injunction or temporary restraining order “relieving them from FEMA's exclusion policy” because it is unconstitutional. Id. at 25. Rather than responding to Plaintiffs' constitutional arguments, FEMA continuously asserts that Plaintiffs lack a concrete injury, which, in turn, strips the court of jurisdiction over the matter and negates the irreparable harm element for injunctive relief. See Dkts. 30, 62. Additionally, amici have filed briefs supporting and opposing Plaintiffs' motions. Dkts. 25, 29, 56.

         II. ...

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