Washington – According to lawyers, the Puerto Rican government has solid grounds to go to court and ask the U.S. Department of Housing and Urban Development (HUD) to expedite the release of the nearly $20.5 billion in
Community Development Block Grant – Disaster Recovery (CDBG –DR) Program funds approved after Hurricane María struck the island in 2017.
"HUD would have to explain which is their legal authority to stop the release of those funds," said yesterday Phillip Escoriaza, of the Washington, D.C.-based firm Feldesman Tucker Leifer Fidell, which, among other legal services, specializes in the federal grants world.
Amid the new emergency on the island following this week´s earthquakes, Washington Resident Commissioner Jenniffer González told El Nuevo Día on Thursday that she was considering the possibility of bringing together a group of Hurricane María victims to sue HUD in the federal court. 28 months after the Hurricane, the agency has only released $1.507 billion of the almost $20.5 billion in CDBG-DR funds approved by Congress or administratively.
Democrat David Price (North Carolina), who chairs the Appropriations Subcommittee overseeing HUD, also proposed the possibility of filing a lawsuit last December and on Thursday at a meeting between the Congressional Hispanic Caucus - including Puerto Ricans Nydia Velazquez, Darren Soto and Alexandria Ocasio Cortez - and Speaker Nancy Pelosi they discussed the same idea.
Last February - the same month that the first $1.507 billion was disbursed - HUD Secretary Ben Carson authorized the use of another $8.221 billion in CDBG-DR funds, which, without any apparent reason, have not yet been disbursed.
HUD is also in violation of an act of Congress that ordered that agency to publish, no later than September 4, 2019, the guidelines on the use of another $10.3 billion package for mitigation projects, including $8.285 billion for which the government of Puerto Rico has already submitted a plan.
As an explanation for the delay, HUD alludes to concerns about the Puerto Rican government's history of "corruption and mismanagement of funds" and the fact that the island's Housing Department has only used $10.8 million of the $1.507 billion disbursed in February 2019.
On August 2, HUD announced it would appoint a federal financial monitor to oversee the use of CDBG-DR funds in Puerto Rico, however, the agency still hasn´t appointed that monitor who was supposed to arrive in Puerto Rico before the end of 2019.
Escoriaza said the apparent delay of the Puerto Rico government to use the funds cannot be an excuse.
He considered that they could go to court with a mandamus action, arguing that the federal agency is not complying with the duties imposed by the law that created the CDBG program and the laws that granted the federal agency the budgetary authority to extend aid to Puerto Rico under the CDBG-DR program.
Attorney Juan Carlos Albors, PDP pre-candidate for Washington Resident Commissioner thinks, however, that the litigation should be done through the U.S. Government Accountability (GAO). Last October, he asked the U.S. GAO to intervene in this matter, since he considers it has primary jurisdiction to determine that the federal government is "confiscating funds from the island.
Albors - who will meet next week in Puerto Rico with GAO officials – has been asking Washington Resident Commissioner over the last three months to join the claim so that the Office, an independent arm of Congress, determines that a confiscation of funds has indeed occurred and goes to federal court in Washington, D.C. to ask for the release of those funds.
"It's easier to address it from (mitigation project funds)," because, over the last four months, HUD has been failing to comply with the congressional order to publish the guidelines for the use of that part of the funds, Albors said.
However, due to a requirement of another congressional law, CDBG-DR funds for mitigation projects cannot be disbursed until the Puerto Rico government and the Federal Emergency Management Agency (FEMA) reach a final agreement on the cost of permanent works to be financed by the U.S. government after Hurricane María hit the island two years ago.
The deadline for this process was 11 October 2019. But three months later, FEMA and the government of Puerto Rico have not yet set a new date.
Escoriaza argued that requiring to sign an agreement between the Puerto Rican government and HUD - contrary to mitigation funds that are conditioned on an agreement with FEMA - the Wanda Vázquez Garced administration should ideally focus on pressing for the $8.221 billion authorized by HUD Secretary Ben Carson 11 months ago.