Abril-Rivera v. Johnson

I am compelled to dissent because Plaintiffs-Appellants (“Plaintiffs”) have raised genuine issues of material fact that require a trial before a fact finder. This is especially the case when one considers the actions of the majority in raising motu proprio an affirmative defense, namely the so-called safe harbor defense, for the first time on appeal notwithstanding Defendants-Appellees’ (“Defendants” or “FEMA”) failure to raise that defense, either before the district court or before this court.

I. Background

A. The Discrimination Claims

As the majority opinion recounts, the facts of this case…