Bureaucratic violence

As institutions whose operations provide the administration of care and control, bureaucracies are dynamic spaces in which decision-making, knowledge production, technologies and materiality render institutional interests and goals visible. Researchers have examined bureaucracies as social and organisational systems (Crozier 1963; Graeber 2015; Hull 2012) from a variety of perspectives. These include the administrative production of indifference (Herzfeld 1992), bureaucratic surveillance (Torpey 2002), mobility and spatiality (Sharma 2020), management of time (Anderson 2020) and the materiality, technologies and circulation of documents (Boehm 2020; Reinke 2018; Reinke and Eldridge 2020). Bureaucracies that result in ‘the administration of decisions, care, and control through bureaucratic processes simultaneously affecting our physical, social, and mental-emotional well-being’ (Eldridge and Reinke 2018) also quantify, compartmentalise and consolidate the human experience such that narrative and affective being become devalued in decision-making (Graeber 2015).

Documents are but one bureaucratic technology that operate as a reflection of and a window through which to see inequality, the creation and perpetuation of unequal access to resources, and institutional betrayal (Allard and Walker 2016; Bevilaqua 2020; Ferreira and Nadai 2015; Gordillo 2006; Horton and Heyman 2020). Simultaneously, paperwork creates reality for organisations which use such documents as official memorialisation (Dery 1998). Further, the routinised rituals of document creation, circulation and archiving work as mechanisms to prevent the loss of institutional knowledge as well as institutional learning (Dery 1998). As dynamic objects that are created, modified, destroyed and circulated amongst bureaucrats at various levels, as well as the citizens who are often the ultimate object of such documentation, paperwork is a manifestation of bureaucratic violence (Allard and Walker 2016; Horton and Heyman 2020; Hull 2012; Reinke 2018; Reinke 2020; Wissink and Van Oorschot 2020).

Bureaucratic violence enacted via documents is also a form of biopolitics in which the institution surveils and controls typically marginalised peoples (Gupta 2012; Joronen 2017). In Akhil Gupta's work (2012), bureaucracy and its trappings – documents, bureaucrats, processes – are actively violent state-like creations which ostensibly exist to care for citizens. Research within bureaucratic institutions purportedly providing care has also illuminated the ways that documents can operate as forms of inclusion and exclusion, causing individuals to delay seeking assistance while creating feelings of fear and emotional distress (Heckert 2020; Rehsmann 2020). For example, identity documents exist as socio-legal truth regimes that monopolise determinations on who counts and qualifies (Feldman 2008; Horton and Heyman 2020; Kelly 2006). The life of documents can also manifest as bureaucratic waiting that produces emotions such as uncertainty, hope and despair (Hasselberg 2016; Hoag 2014; Rehsmann 2020). The governance and legal form enshrined in such processes may be purposefully designed to result in delay and waiting, as bureaucratic forms theoretically related to the concept of slow violence (Nixon 2011). For example, Mikko Joronen (2017) examines ‘spaces of waiting’ in an analysis of Palestinian experiences in sites close to Israeli settlements. Bureaucratic technologies of administration, legal control, and securitisation purposefully function slowly to effect stalled decision-making that deleteriously affects Palestinian residents.

Disasters are a juncture where policy and law meet and within which bureaucratic violence is readily visible. Research on home inspectors in disaster aftermaths reveals significant bureaucratic discretion in decision-making about whether a home is considered habitable to federal standards or not (Rivera 2016). The result of the ‘bureaucrat's personal discretion in matters of policy choice and implementation’ (Rivera 2016: 13) is a FEMA decision to either provide or decline an application for assistance – the declination of which broadens legal possibilities for the applicant to pursue while resulting in longer wait times for assistance and additional bureaucratic hurdles to surmount. In the aftermath of Hurricane Florence, the ‘bureaucratic beast’ of recovery included mass amounts of paperwork and damage documentation that were complicated in both verbiage and requirements – exclusionary practices that disproportionately marginalised some survivors (Reinke 2020).

Other scholars have similarly examined the confluence of disasters and bureaucratic impediments to assistance, such as Megan Reid's (2013) work on FEMA's processing delays and unclear rental assistance requirements. Steve Kroll-Smith and colleagues (2015) point to the many obstacles faced by Hurricane Katrina survivors when it came to receiving that assistance. The particular challenges of homeowners in receiving assistance after Hurricane Sandy are brought out by Veronica Pareja (2019). Erin Eldridge (2018) considers the role of bureaucratic absence and inaction for lived experiences of survivors after a coal ash spill. While these studies have illuminated the challenges survivors face in disaster recovery due to bureaucratic violence, in this article we contend that disaster lawyers operate as mediators between bureaucratic processes and evidentiary requirements, and the survivors subjected to such policies and processes.

Approaches and experiences

Disaster law practitioners working in the legal field for no less than two years prior to the interview were included in this study. The study included eight interviewees who are involved in disaster law practice in four SEUS states. These interviews were mainly virtual. The project also joined with our research project on hurricane recovery, where face-to-face research was conducted, and so the data here includes one face-to-face interview. Open-ended questions within a semi-structured interview framework allowed for narrative experiences and wide-ranging responses to emerge in the data: this was so whether face-to-face or virtual. The study considered a widespread geographic area of participants to obtain qualitative accounts on the disaster-survival processes from the perspective of lawyers assisting disaster survivors; pseudonyms are used throughout this article.

While some research participants knew when they enrolled in law school that they were interested in public interest law or legal aid work, the majority had no intentions to practise disaster law. Two out of the eight interviewees had personal experiences as disaster survivors before practising disaster law. For these two respondents, their personal experiences as survivors inspired their desire to work in legal aid and with those affected by disasters. It also may shape the ways in which they interact with survivors, although our data is not explicitly on this point. Because of the physical location of law practices and non-profit legal aid firms which serve survivors, several of our interviewees were affected by the same disaster(s) for which they subsequently provided legal assistance. One participant – a lawyer – was personally affected by a hurricane that left them without electricity for two months. They ‘would have to drive far enough to have our cell phones work’ to reach clients, research available services and work with assistance organisations such as FEMA. This most certainly affects their perspective on disaster recovery, offering clients their own lived experience of recovery in disaster contexts.

Participants working in a variety of disasters and practice areas were drawn from across four SEUS states: Tennessee, Florida, North Carolina and Texas (see Fig. 1 for impact areas). The data thus incorporates their oral accounts and experiences in addition to public material and law cases.

Natural hazard impact areas that are covered by various interviewees’ disaster law practice. Map courtesy of Dr. Mark J. Rochelo.

Citation: Journal of Legal Anthropology 6, 2; 10.3167/jla.2022.060201

• Download Figure

View Full Size

Natural hazard impact areas that are covered by various interviewees’ disaster law practice. Map courtesy of Dr. Mark J. Rochelo.

Citation: Journal of Legal Anthropology 6, 2; 10.3167/jla.2022.060201

• Download Figure

Natural hazard impact areas that are covered by various interviewees’ disaster law practice. Map courtesy of Dr. Mark J. Rochelo.

Citation: Journal of Legal Anthropology 6, 2; 10.3167/jla.2022.060201

• Download Figure

Legal aid practitioners offer a valuable emic perspective on the bureaucratic processes that survivors and their communities are confronted with after a disaster. Our inductive approach to coding was open, utilising both holistic and descriptive coding (Gasson 2004), and prioritised the lived experiences and insights of practitioners grappling with the everyday realities of survivors. The following sections highlight three main themes which emerged from our research participants working in the context of disaster law: habitability standard, the technologies of documentation and processing, and the evidentiary requirements for property ownership and occupancy. These findings add to extant literatures on bureaucratic violence and the unfolding nature of disaster processes, but also contribute novel findings on disaster law bureaucratic processes and technologies, with implications for improving recovery systems for disaster survivors.

Background

The activities of these disaster lawyers, while long-drawn processes, are bids to help the federal government fulfil its mandate. The federal government is required to provide legal services. Section 415 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1998 (hereinafter, Stafford Act) stipulates that if ‘low-income individuals are unable to secure legal services adequate to meet their needs as a consequence of a major disaster, consistent with the goals of the programs authorized by this Act, the President shall assure that such programs are conducted’ (FEMA 2019a). After any disaster declaration, the Legal Services Corporation (LSC) receives the bulk of federal funding to provide such adequate legal services under the Stafford Act. LSC funds are distributed as grants to legal aid organisations that will provide survivor legal services. However, before receiving assistance, disaster survivors need to evidence their standing as ‘low-income individuals’ who require disaster legal assistance. Who qualifies as ‘low-income’ is not clearly defined by the Stafford Act. However, the LSC defines it as ‘people who live in households with annual incomes at or below 125 percent of the federal poverty guidelines’ (LSC 2022). In 2021, an individual making around $16,000 or a family of four making around $33,000 or less would qualify as ‘low-income’ according to the LSC standard (LSC 2022).

Legal aid organisations work only with low-income individuals, but typically do not have a permanently employed disaster lawyer. Instead, these organisations rely upon the intermittent and temporary grant funds from the LSC to expand existing services (i.e. debt collections, advance directives, government benefits, etc.) to include disaster cases. In a few instances, legal aid organisations do have a permanent staff member dedicated to disasters, allowing for institutional memory about disaster law and practice from prior disasters. One lawyer in such an organisation with institutional memory shared that in these instances survivor assistance works as ‘a well-oiled machine; they know what they're doing’. However, where there is not an extant disaster law practitioner on staff, an existing staff attorney will be pulled from their other legal aid work (i.e. debt collections) and instructed to shift focus to the grant-funded disaster service provision. In yet other contexts, the organisation will create a position and hire a new attorney, but only for the duration of the grant.

In a federally declared disaster, such as the Tennessee tornadoes in 2020 or Hurricane Florence in 2018, eligible disaster survivors can apply to FEMA's Individuals and Households Program (IHP). Eligibility requirements include being a US citizen, qualified alien or non-citizen national; the survivor's identity must be verified by FEMA; and the survivor must evidence that insurance cannot fulfil their needs and provide proof that their ‘necessary expenses and serious needs are directly caused by a declared disaster’ (FEMA 2020). Survivors must provide several documents and proceed through a long process in order to receive assistance. Survivors must provide evidence of a damaged home or of damaged belongings (i.e. photos of a damaged roof, flooding or water intrusion, video evidence, etc.) and make a list of all the items that were lost or damaged. According to a disaster survivor after the Tennessee tornadoes in 2020, their family submitted over one hundred pages of paperwork attesting to their lost property, including photos of damages and purchase receipts. Survivors must additionally provide proof of occupancy or property ownership, provide identification, file an insurance claim and provide the insurance determination letter, and complete the application via the FEMA smartphone application by phone through their 1-800 number. They then must submit their materials by mail or fax, or provide materials in person at a Disaster Recovery Center (DRC). Survivors navigating the procedural requirements for FEMA assistance are often faced with extended response times and unexplained assistance application denials. Disaster law practitioners help by aiding and advocating for their client throughout the process. The work of legal aid professionals is multifaceted as they organise outreach to affected communities, connect survivors to resources and services, navigate insurance and assistance options, and provide administrative support with paperwork and FEMA appeals.

These efforts are grassroots – disaster law practitioners work with non-profits and recovery groups to connect survivors to resources and to make them aware of their rights. For example, the non-profit Equal Justice Works established the Katrina Legal Initiative, providing outreach and services in the Gulf Coast region after Hurricane Katrina and its destruction that most heavily impacted traditionally underserved populations. The programme revealed legal issues related to housing, insurance, consumer matters, FEMA benefits, other disaster benefits and family law (Debus and Irazola 2009). Because local and federal disaster preparedness and response time have a substantial impact on recovery outcomes, organisations experienced in disaster law are a vital resource to the survivors they serve.

When a survivor has been denied from FEMA IHP assistance, for example, the applicant has sixty days in which to appeal (FEMA 2020), after which their file is reviewed with the additional evidence provided. Lawyers submit the appeal on behalf of the survivor, amassing the evidence and writing the appeal letter. They go to survivors’ properties to examine the damage, take photos, collect narratives and gather evidentiary documents (i.e. insurance claims, proof of ownership/occupancy). This direct support for clients facilitates the recovery application process for survivors.

Habitability

Thus, disaster law practitioners play key roles in the federally declared disaster context and in the everyday life of survivors, particularly in their work managing the paperwork and bureaucratic procedures required for assistance applications. According to our research participants, most of the cases received in their disaster law practice were related to FEMA denials, appeals and insurance claims. Oftentimes in such cases, a disaster survivor applied for FEMA recovery assistance and was denied or submitted their insurance claim and was denied. While the issue of FEMA denials is well-known from the government perspective, it has been attributed to the lack of clarity in FEMA's communications with survivors (GAO 2020). While there are many reasons for FEMA individual household support denial, it commonly relies on what participants highlighted as habitability.

When a survivor submits an IHP application to FEMA, the agency sends an inspector out to examine the property and determine whether it meets FEMA's standards for living, termed ‘habitability’. According to FEMA, ‘a habitable home is one that is safe, sanitary, functional and presents no disaster-caused hazards to the occupants’ (FEMA 2021). Inspections are conducted by individuals contracted by FEMA. Inspectors go to survivors’ property to assess whether damage to the home was caused by the natural hazard and whether it meets FEMA's definition of habitability.

All interviewees shared concerns about the inspections, inspectors’ training, wide variability in inspection determinations, and FEMA's subsequent handling of inspection information. Ana, a lawyer who has worked with Disaster Legal Services, a division of the American Bar Association, noted that FEMA's advice to survivors was lacking:

[They were] telling people okay, well, your home is safe to live in. And what do we need to do to prove to you that it's not? It's very subjective, and they don't tell us what their guidelines are. We can't show any way that it is objective; it's just whatever that inspector might think. And although they're not making the ultimate decisions, they're the ones that are making the decision on whether the home is habitable or not. We see in some areas where we might think that the home is completely destroyed, and they [the survivors] get nothing. And then another home, which is maybe, we think, is not as bad [and] they get something, so it's just very hard as an attorney to make a case when you don't know what it is you're trying to overcome.

Inspectors are given limited information about what is needed to achieve this evidentiary standard and asked to assess the likelihood that damages to a home came from a natural hazard and whether the damage meets the threshold for FEMA approval of survivor assistance. Legal service providers express irritation, frustration and anger at this process. One noted:

A lot of the inspectors, they just have to pass a background check and have limited training. They're not going to crawl underneath the house or get on a ladder. They just have to stand on the driveway to assess the roof and the basement. It's just not set up for success. If that frontline employee doesn't do the job right it creates a lot of strife for the process. That's where a lot of the irritation comes from my colleagues working with FEMA. They're just working with a lot of issues at the inspection level.

And another noted:

We always have problems with inspections … we think they're not quality. FEMA hires in mass and then doesn't really train inspectors, and they don't really have to have construction experience. So [we are] constantly battling the mass hire, the person who's trying to do good but doesn't really know how much damage, something might cost, or how catastrophic damage can be in certain instances.

These two respondents were from different, yet similar, organisations dealing with daily situations faced by survivors. Their similar reflections corresponded with impact litigation submitted by legal aid groups on behalf of disaster survivors seeking assistance from FEMA. In an impact-litigation case brought against FEMA by Texas RioGrande Legal Aid, for example, a disaster survivor

told the inspector that the damage was to the roof, and offered the inspector a ladder to go up and look at the roof. The inspector declined to go up on the ladder and look at the damaged roof. She told Mr. Benavidez that she didn't need to do that, that her camera ‘could do miracles’ and she just took pictures from inside the house and at ground level. She did not take pictures of the part of the roof that was seriously damaged by the hurricane. (Disaster Legal Aid 2008)

However, some respondents’ views simultaneously reflect empathy and understanding for the difficult position of the inspector. They highlight the low pay and rapid hiring of inspectors who may have limited training and expertise in building, codes and the habitability standard but who need employment, particularly in disaster-affected areas where employment opportunities are limited or unavailable as businesses are destroyed, damaged or waiting to rebuild. Inspectors operate as street-level bureaucrats and are asked to implement policies that are poorly explained in their direct work with citizens affected by a disaster (see Lipsky 1980; Meyers and Vorsanger 2007). Inspectors must rapidly assess property damage, completing a checklist and documenting damage in short home visits (lasting between twenty and forty minutes) while attempting to parse out the generic language of ‘habitability’ in their determination. Limited time for home visits means that inspectors do not inspect key areas of the home, for example, the roof in the previous impact litigation excerpt, according to most of our participants.

The issue of variability in inspector decision-making has been raised in the literature by researchers investigating disaster survivors’ perceptions of inspectors (see, for example, Rivera 2016). As a result of the unclear habitability standard, inspectors are perceived by disaster lawyers (and survivors, per Rivera's work) to have substantial bureaucratic discretion in their work. Potentially such this discretion may benefit a survivor's claim of damages and request for FEMA assistance. However, overall this discretion results in an unclear and haphazard geography of habitability determinations and, thus, FEMA application acceptances and denials.

The lack of clarity about the standard was a universal theme in our research. A research participant working with hurricane survivors reflected: ‘What's the evidentiary standard for that? When you see homes that are covered in mould, and yet FEMA has said that it's habitable?’ Neighbours with less damage receive FEMA support, while others in the same geographic area who lost their home receive nothing, leaving some lawyers to wonder how they can meet the rather unclear evidentiary standard of habitability.

In what becomes an assistance denial for some survivors, they receive ‘form letters’. Such standard communication often provides nothing more than the general FEMA explanation of the code utilised in the denial of the application for assistance. In one case, a denial was based upon an ‘IID-Ineligible-Insufficient Damage’ code, defined as follows: ‘Based on a FEMA inspection, it was determined that the disaster had not caused the applicant's home to be unsafe to live in. This determination was based solely on the damages to the home that are related to the disaster’ (FEMA 2008). At this point, the lawyer involved in the matter will seek to build evidence for an appeal.

The frustration of lawyers seeking to build a case for appeal on a poorly defined evidentiary standard was palpable. However, another side to this was the potential to turn to impact litigation; this is where lawyers use a case to advocate for social change, arguing for the impact in order to claim damages. In one example, a complaint was filed in the aftermath of Hurricane Dolly: TRLA assisted plaintiffs in filing a pleading complaint against FEMA for how they arrived at housing application assistance denials. Their complaint requested that FEMA ‘publish and apply ascertainable standards to make its housing repair assistance decisions’ in addition to providing financial assistance to affected survivors (Disaster Legal Aid 2008). In the complaint, TRLA presented several cases. As an illustrative case, a Spanish-speaking plaintiff who was an elderly woman living alone and reliant upon Supplemental Security Income and social security disability benefits amounting to $6,756 annually was affected by Hurricane Dolly and filed for assistance. The hurricane purportedly damaged this individual's roof, causing water leaks and subsequent mould damage – repairs estimated to cost US$1,500. The FEMA inspector sent to the home was not proficient in Spanish and, thus, could not speak with the resident. The inspector took photos from the ground-level only. The resident was subsequently denied any form of assistance under the claim of ‘insufficient damage’ (Disaster Legal Aid 2008: 7–8). In this context, the evidentiary standard was deemed unclear, and the inspector's report insufficient in scope. Further, the claimed communication failures led to the views of an inequitable and marginalising approach to application-processing.

Technology of bureaucratic processing

In addition to the unclear evidentiary standard of habitability, another source of frustration is FEMA's seeming inability to ‘get their agency into the twenty-first century’, another research participant pointed out. While FEMA now has an online portal, the Disaster Assistance Center, for submitting individual assistance application documents, the portal is purportedly clunky, not user-friendly and requires a computer and Internet connection to gain maximum utility. The FEMA smartphone application cannot currently be used to submit IHP applications or appeals; the smartphone app currently only provides information. These are weather alerts, shelter and DRC information, emergency kit checklists and FEMA contact information to register for disaster assistance via their online site, the Disaster Assistance Center.

Much of the paperwork and documentation for initial individual assistance applications and FEMA appeals in the event of an assistance denial are done via fax or mail. Similarly, inspector reports are circulated in a virtual system that is not open to survivors or their legal representatives; survivors thus do not have ready access to these reports. Thus, digital capabilities and paperwork processing is not built into a single transparent government process.

After receiving a denial letter for individual household assistance applications, disaster survivors have two choices of where to submit their appeal documentation. One is to submit in-person at a DRC – these were closed during the initial months of COVID-19 in spring and summer, the two primary storm seasons in the SEUS. The other is to navigate the Disaster Assistance Center website on a computer with Internet access or, at their own expense, mail or fax their documentation. According to one lawyer, ‘it's expensive to have to fax everything in. They have to spend $1.50 per page to fax a twenty-page appeal. With technology, most people have smartphones now, even lower-income people. Now they don't have a computer, but they have a smartphone. There should be third-party apps where you can take a picture on your phone and submit it’.

In addition to cost barriers for their appeal, in many cases faxing documentation to FEMA is impossible because of infrastructure damage. Furthermore, businesses that offer faxing, such as FedEx, may be temporarily inoperable or permanently closed. Similarly, many survivors do not have access to the Internet and a personal computer in disaster aftermaths. After Hurricane Michael, many survivors did not have power or Internet for over two months. One respondent, a survivor and disaster law practitioner, noted that they ‘didn't have power for weeks, but we were able to … drive far enough to have our cell phones work and get on our phones … we were just doing the best we could’. The ability to scan and submit documentation via the FEMA app would have made the initial application process and subsequent appeals much more accessible to survivors such as the one mentioned above.

Under disaster conditions, the expectation that survivors will have all the necessary physical paperwork, such as a property deed or title, and the concomitant expectation that they will have ready access to outdated forms of technology (i.e. a fax machine), expensive equipment (i.e. a personal computer, Internet), or that they can afford to mail or fax documents and photographic evidence of damage to FEMA are forms of indirect violence embedded in the bureaucratic process of assistance determinations. This is particularly salient for legal aid clients, who are specifically eligible for assistance because of their income status. Research participants working in the legal aid sector are assisting individuals who are low-income and have limited access to resources such as personal computers – they ‘don't have great access to technology’ and are therefore limited in their ability to access technologies beyond their smartphone, which interviewees mentioned is common for individuals to own. While they may have access to computers via a public library, for example, these resources may be affected by a disaster (i.e. power outages, Internet outage) and are often closed to the public during COVID-19 shutdowns.

As a participant pointed out, the result of relying upon physical paperwork and the opacity of processing once FEMA receives such paperwork is not just the inaccessibility for many legal aid clients and disaster survivors more generally, but also the increasing number of bureaucrats. The ‘whole job is to initially shepherd the application through the intake process … but not provide any meaningful information; they just read whatever information is in their system’. While survivors may be encouraged by local FEMA representatives to just call the hotline for information about their case (Reinke 2020), the individuals who take these calls are not specialists on each individual case, nor are they legal specialists. Hotline operators look up a given survivor's information and simply read what is in the system – a system that neither the survivor nor their legal representative can access to verify information or catch processing errors. Lawyers trying to work with FEMA representatives via phone are frustrated as well because, according to one lawyer interviewed for this study, they are ‘talking to someone who's been mass hired or a customer service representative’ who has limited knowledge and understanding about the law.

Our data shows that when assistance applicants do call FEMA for more information about their case, denial or appeal, they do not necessarily realise that they need to get information in writing, rather than over the phone. Documentation of their interactions may be important to their case. It leads to what one interviewee describes as ‘the inevitable miscommunication’ where a survivor hears one thing on the phone but receives something different in writing or receives nothing from their conversation in writing at all. The paperwork and processing are rendered invisible as processes embedded in a bureaucratic system in which only FEMA representatives have access and authority.

The lack of consistency in paperwork and processing leads to a lack of transparency, ultimately contributing to the construction of what David Dery (1998) terms ‘papereality’ – a representational form inscribed in constituent ritual that could work to inhibit institutional forgetting (in addition to institutional learning). The importance of documents as a form of papereality is not lost on lawyers. During outreach events, we saw lawyers asking survivors to ‘bring all their documents’. A paralegal is present to scan these documents, and, according to a lawyer working in rural North Carolina, by the time the lawyer is ‘done talking to you for my hour thirty minutes, he's done scanning, they [the survivor] get the originals back and we get everything electronically stored’. Lawyers ask for as much paperwork and documentation as survivors can provide, including titles, deeds, photographs, insurance claims and anything else that could help their case.

However, all this paperwork is still primarily submitted via fax or physical paper copy. A benefit of going digital with FEMA disaster damage documentation and recovery paperwork from inspection through to appeal is that data analytics also become more readily used to identify trends. Data analytics could be used to identify and flag inspectors who are denying relief in most of the cases they inspect, or to identify where mistakes may be made in the approval processes after that.

Demonstrating property ownership

To receive assistance from FEMA, applicants must provide documentation demonstrating property ownership in addition to evidence of damage, insurance and habitability issues. In general, respondents described the tasks of attesting property ownership as one of the most common obstacles that clients face in their FEMA applications, and for applicants who have been denied an appeal, this is also burdensome. FEMA requires proof of home ownership before considering an application for assistance, and FEMA will verify home ownership through an automated public records search, during the inspection or by the documents submitted by the applicant. Verification documents include a deed, title or lease agreement; a bill of sale; a land contract; mortgage documentation; a property tax receipt or bill; a bill of sale or bond for title; a quitclaim deed; a land instalment contract; a real estate provision; a certificate of title for a manufactured home; a will that names the applicant as the property heir along with a dead certificate; and a real property insurance document, bill or payment record, or structural insurance documentation (FEMA 2019b).

Despite this rather long list of documents, FEMA representatives are not well-versed in state-specific laws regarding home ownership. Lawyers become frustrated (again) trying to explain these legal complexities. They try ‘to explain legal ownership or title ownership in your state and what that means and how it's different. And no, actually your client does own the house, even though it's not with the document you prefer’, one respondent noted. This interviewee noted that it ‘can be very frustrating’ when FEMA representatives fail to understand property-ownership documentation requirements. Oftentimes, ‘clients will end up with nothing, because you can't convince the customer service representative on the other side’ that they have provided the correct documentation.

According to the lawyers interviewed for this project, in instances where legal aid clients inherit their property, there is typically no clear title ownership. This becomes challenging if such clients are seeking FEMA assistance. A legal aid lawyer working in the rural SEUS areas reflects on the unique challenges of their property issues:

It almost seems more prevalent in these rural areas where now you have multiple family members, all living in mobile homes on a single track of land that their great grandfather owned, and nobody had a will, and he didn't pass it on to anybody. And only now does it actually matter that there isn't clear title to the mobile home, just let alone the mobile home, and especially there isn't a clear deed to the land. That home-ownership issue is one that seems to come up a lot with our rural clients.

These are generational homes that can also have several heirs: since the family may have ‘lived on that land for hundred years now, there has never been a formal deed’ and where there has been an allocation of property, it was likely done verbally with a handshake. After generations have been born and passed away, ‘it gets to a point where there could be dozens or hundreds of people that have an interest in that property. The federal government is not going to give any money in that situation’.

Lawyers are sometimes able to assist clients in establishing a clear title in their name by drafting affidavits for heirship or small estates and assisting with loan closings. In the legal sense, these processes can move quickly if there are no (or limited) heirs that could have an interest or claim in the property. Regardless of the complexity of the property-ownership issue, clearing a title is a way for a survivor to stake a legal claim to a piece of property, thus establishing themselves as the owners and rightful recipients of housing assistance. Lawyers often help ‘clear their title, because a lot of the recovery programs won't help you if you don't have a clear title to your home’. However, this creates a long recovery process whereby the assistance applicant must first have their title cleared by the courts, get the legal documentation proving ownership and then apply for FEMA assistance. Throughout these processes, survivors may be living in their damaged home, paying for temporary housing or relying on family or friends to house them. Despite the frustrations of jumping over these proverbial bureaucratic hurdles, ‘we still had to work within the system’ to get results for the client in terms of not only the title clearing, but also to open the potentiality of recovery assistance from FEMA and disaster recovery non-profits that require evidence of home ownership.

Renters face other unique challenges. Renters are beholden to property owners to initiate claims for property damage, although renters may qualify for other forms of assistance. A lawyer working with low-income survivors shared that renters may have ‘been evicted from their home after the disaster, or just broke their lease and left because the home wasn't safe to live in anymore, and they were still eligible for FEMA assistance to replace their loss of personal property’ although they were not eligible for assistance with fees incurred in breaking a lease or in dealing with eviction proceedings. These individuals ‘had a really hard time getting FEMA assistance’ because they were not physically at the home by the time of the inspection and did not receive information about the services available to them.

Research demonstrates that FEMA's rental assistance programmes assume that survivors live a middle-class lifestyle in which there is a nuclear family organisation and in which they have extant ‘social safety nets’ (Reid 2013). FEMA's rental assistance stems from the Stafford Act, which will pay rental money directly to the landlord as a form of support for the property occupant and owner. However, deadlines for these programmes continually shift in disaster aftermaths, with little notice to tenants or owners, and renters may need to reapply for assistance under various programmes during the recovery period (Reid 2013). Although legal service providers offer support throughout the process to the best of their abilities, navigating property ownership remains an additional barrier further extending the amount of time before survivors can receive assistance. The effect of disasters as ‘totalising’ are also, thus, long-term in ways that underscore pre-existing inequality (Oliver-Smith 1998: 178).

Conclusion

Disasters provide insight into and the opportunity for scholarly enquiry into the juncture where policy, law and street-level bureaucracy meet to impact the everyday life of disaster survivors. Bureaucracies such as FEMA present themselves as objective, rational and efficient – and whose processes result in fair outcomes for survivors seeking disaster assistance. Despite this representation, bureaucracies often signal ‘unnecessary paperwork, complicated protocols, and other measures or conditions that generally constrain the individual’ and have systems that are ‘opaque, inscrutable, and illogical’ (Hoag 2011: 82). The process of applying for FEMA assistance is opaque, unclear and inaccessible to many survivors. Legal representation steps in to clarify this process, navigate the paperwork and evidentiary requirements, and advocate for their clients’ needs.

Our research on bureaucracy of disaster recovery and legal claims has demonstrated how bureaucratic practice, paperwork and process are not merely characterised by the ‘end result’ (i.e. application denial or approval). Rather, disaster bureaucracies are a ‘tangle of desires, habits, hunches, and conditions of possibility’ (Hoag 2011: 86). FEMA processes, for example, are built upon the initial assessment of the inspector, a street-level bureaucrat whose work is to interpret generally abstract policies, laws and rules to produce a habitability assessment (Rivera 2016). Inspectors interpret and implement abstractly defined habitability definitions in short order and produce assessments that further obfuscate the evidentiary standard for habitability. The result is bureaucratic discretion on the part of poorly trained and rapidly hired inspectors who have limited oversight and experience – survivors and their legal representatives (where applicable) are left to make sense of the uneven landscape of denials and approvals that hinge upon inspections.

By focusing on the technologies of disaster bureaucracy, such as paperwork and processing, we shift scholarly attention away from the formalised institutional configuration of the state towards understanding the way in which such institutions work (see Chakrabarti et al. 2021). Exclusionary practices that disproportionately marginalise some FEMA applicants, processing delays, and unclear requirements all stand as obstacles to disaster assistance (Eldridge 2018; Kroll-Smith et al. 2015; Pareja 2019; Reid 2013; Reinke and Eldridge 2020). Prior studies thus revealed the multiplicity of challenges survivors face. Our findings indicate that lawyers stand as key players in the disaster recovery landscape. Their work with individual survivors to facilitate proof of ownership, register them for other social services for which they may be eligible and navigate the bureaucratic monolith that is FEMA results in tangible outcomes for survivors. We have thus taken the scholarly debates concerning bureaucratic violence in disaster aftermaths further to discuss the implications of bureaucratic impediments for lawyers assisting disaster survivors as they navigate the recovery process and meet their most basic needs, such as housing.