Specifically, the Stafford Act includes a public assistance program (the “PA Program”) that allows for certain “private nonprofit” organizations (“PNPs”) to receive disaster relief grants from the Federal Emergency Management Agency (“FEMA”). To receive disaster relief grants, a PNP must own or operate an “eligible facility.” Among other requirements, an eligible facility includes “[a] facility that provides a non-critical, but essential government service.” FEMA's “Public Assistance Program and Policy Guide” lists eligible services, but also designates some services as ineligible. Specifically, “[f]acilities established or primarily used for political, athletic, religious, recreational, vocational, or academic training, conferences, or similar activities are not eligible.”

When a PNP provides multiple services to its community, FEMA determines the facility's primary use by reviewing 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).” As explained by 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 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.

The Plaintiffs conceded that they used more than 50 percent of the physical space in their facilities for religious activities. They argued, however, that although they met all the other funding requirements, FEMA denied them post-Harvey funding because they were religious institutions.

The Plaintiffs asked the U.S. District Court for the Southern District of Texas to grant a preliminary injunction or temporary restraining order “relieving them from FEMA's exclusion policy” because it was unconstitutional in that it violated their rights under the Free Exercise Clause of the First Amendment.

For its part, FEMA asserted that the Plaintiffs lacked a concrete injury that stripped the district court of jurisdiction over the matter and negated the irreparable harm element for injunctive relief. Specifically, FEMA argued that the Plaintiffs' applications for funding had not been denied, but rather were on hold while FEMA reviewed the policy, and FEMA was working on implementing a new policy that might render the Plaintiffs' claims moot.

The District Court's Decision

The district court denied the Plaintiffs' motion for a preliminary injunction and their motion for temporary restraining order.

In its decision, the district court first found that the Plaintiffs had standing. It reasoned that the Plaintiffs had filed applications for funding, that FEMA's policy stated that a facility primarily used for religious activity could not receive funding, and that the Plaintiffs used their facilities primarily for religious activity. In the district court's view, FEMA “[u]ndoubtedly” would deny funding to the Plaintiffs under the current policy. Therefore, the district court ruled, the Plaintiffs had standing.

The district court also found that the case was ripe. The district court pointed out that, as the policy currently was written, “it would be futile to wait for FEMA to deny Plaintiffs' applications.” The district court acknowledged that FEMA asserted that the policy was in the process of being changed. However, the district court said, any change to FEMA's policy was “speculative” and did “not impact the challenge to the current policy.”

Next, the district court decided that the potential policy change also did not “moot the case” because the updated policy still was “speculative.”

The district court then held that the Plaintiffs were not entitled to injunctive relief because they had not shown “a substantial likelihood of success on the merits” – that is, a substantial likelihood of demonstrating that FEMA's policy violated the Free Exercise Clause of the Constitution.

The district court reasoned that the Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote religious activities. Thus, the district court found, FEMA's denial of funding was not because of the Plaintiffs' status as religious institutions, but rather because they primarily used their facilities for religious activities.

The district court pointed out that FEMA's policy did not impose criminal or civil sanctions on any type of religious service or rite. FEMA also did not deny funding only to entities whose facilities were primarily used for religious activities. Instead, facilities used for “political, athletic, religious, recreational, vocational, or academic training, conferences, or similar activities” were not eligible.

The district court said that it did not have to determine whether the FEMA policy was constitutional, only whether the Plaintiffs had demonstrated a substantial likelihood of success on the merits. It concluded that they had not done so.

The case is Harvest Family Church v. Federal Emergency Management Agency, No. H-17-2662 (S.D. Tex. Dec. 7, 2017). Attorneys involved include: For Harvest Family Church, Plaintiff: Daniel Benson, Eric Christopher Rassbach, The Becket Fund for Religious Liberty, Washington, DC; Daniel Howard Blomberg, The Becker Fund for Religious Liberty, Washington, DC; Diana Marie Verm, Becket Fund for Religious Liberty, Washington, DC. For Hi-Way Tabernacle, Plaintiff: Daniel Benson, Eric Christopher Rassbach, LEAD ATTORNEY, The Becket Fund for Religious Liberty, Washington, DC; Daniel Howard Blomberg, The Becker Fund for Religious Liberty, Washington, DC; Diana Marie Verm, Becket Fund for Religious Liberty, Washington, DC. For Rockport First Assembly of God, Plaintiff: Daniel Benson, LEAD ATTORNEY, Eric Christopher Rassbach, The Becket Fund for Religious Liberty, Washington, DC; Daniel Howard Blomberg, The Becker Fund for Religious Liberty, Washington, DC; Diana Marie Verm, Becket Fund for Religious Liberty, Washington, DC. For Federal Emergency Management Agency, Defendant: Daniel David Hu, Office of the US Attorneys Office, Houston, TX; Danielle Wolfson Young, US Department of Justice, Washington, DC; Kari E D'Ottavio, U.S. Dept. of Justice, Civ Div, Fed Programs Branch, Washinton, DC. For William B. Long, Administrator of the Federal Emergency Management Agency, Defendant: Danielle Wolfson Young, US Department of Justice, Washington, DC. For Jews for Religious Liberty, Congregation Torah Vachesed, Amicus: Jamie Alan Aycock, LEAD ATTORNEY, Kirkland & Ellis LLP, Houston, TX. For Archdiocese of Galveston-Houston, Amicus: Michael Byron Bennett, LEAD ATTORNEY, Baker Botts LLP, Houston, TX.