United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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),
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.”
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
“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
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.
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.
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,