Did FEMA Take Your Mask?

No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation.

I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go.

According to reports in the Los Angeles Times and The New York Times, this kind of thing has happened in several states, from Washington to New Jersey to Florida. One case involved a shipment of three million N95 face masks that the state of Massachusetts had ordered from BJ’s Wholesale Club. According to Massachusetts Gov. Charlie Baker, the masks, which were intended for his state’s health care workers, were instead seized without explanation by federal authorities (he didn’t say what agency) at the port of New York. That surprise sent the resourceful governor scrambling for a last-minute fix that involved a Chinese supplier, a foreign ambassador, and a jet borrowed from the New England Patriots.

Then there is George Gianforcaro, the owner of a small medical supply company in Delaware, who stood dumbfounded as FEMA officials hoovered up tens of thousands of face masks he was supposed to deliver to sites in Delaware and Michigan. He says FEMA officials gave no reason and didn’t compensate him, either. Gianforcaro says he’s out millions of dollars and has hired a lawyer.

When confronted with these reports, the White House has landed on a simple explanation: none of this is really happening. FEMA Administrator Peter Gaynor agrees. In a recent letter to his emergency managers, Gaynor said these claims of seizures are actually just a big “myth” that he wants his staff to help “bust.” Under a heading titled, “Continue to Bust Myths,” he writes:

The trouble is all those members of Congress, governors, and stakeholders – to say nothing of the nation’s scared and beleaguered hospital workers, letter carriers, and quasi-federalized meatpackers – are seeing a different “ground-truth,” the one testified to by contractors and governors who are in the midst of a desperate search for the supplies they need to keep people alive. Meanwhile, workers and consumers are being pushed to “open the economy” without proper protective gear and testing; state leaders are told they’re responsible for finding their own supplies and forced, Hunger Games-style, to battle other states for resources our national leaders refuse to responsibly expand, allocate, and monitor; and reports continue to surface of suspiciously timed supply diversions with no obvious point other than, perhaps, to punish an outspoken governor, frustrate over-complaining veterans hospitals, or reward the friends of the president’s son-in-law.

Thus, two House committees have asked FEMA to turn over documents related to reports of these confiscations. They also want to know about the involvement of Jared Kushner, President Trump's son-in-law, who is said to be “overseeing” the efforts of Administrator Gaynor in allocating coronavirus-related medical supplies.

At this point, some of you may be asking if these seizures, as reported, are even legal. First, let me say it’s heartening, in this day and age, you still worry about such things. Second, recognizing an important limit, the answer is yes. The Stafford Act, which governs the federal response in civil emergencies, specifically authorizes FEMA to “procure by condemnation” any privately owned “materials and facilities for emergency preparedness.” That would include medicine, ventilators, protective gear, and anything else (except for guns, of course – the act has a special provision against seizing those). The Defense Production Act, for those following the legal issues closely, no longer grants federal authorities the power to seize private property, but the Stafford Act is really all FEMA needs.

As for limits, both the Stafford Act and general due process concerns would disallow a seizure unrelated to a legitimate goal. If punishing an outspoken governor were the only justification an official could come up with, there would be trouble. Also, the Fifth Amendment to the Constitution famously requires just compensation when government takes your property. Had someone at FEMA read the amendment to the end, they would have seen it. So if George Gianforcaro, the medical supplies distributor from Delaware, is describing his situation accurately, Administrator Gaynor owes him an apology – and a check.