Author Archives: wsgribble

TBJ Article: Law in a Time of Pandemic

The Texas Bar Journal recently published an article about how the bar responded to the Spanish Rule between 1918-1920. Written by Mr. Stephen Pate, the article discusses how courts began closing in October 1918, with Tarrant County deciding to close all courts until the “epidemic had subsided”.

Could you imagine the same being done today?

During the epidemic, San Antonio noticed that both the epidemic and military service depleted venire planes. Again, could you imagine trying to emplace a jury where there were not enough jurors?

What is interesting to note from the article is that despite the October 1918 crest, there was a flare up in 1919, but courts were open (although understaffed) and continued to operate.

What does history tell us about today though?

Essentially, we must be able to help each other. The judiciary found a way to have Judges cover matters in various adjacent courts. Though this increased the workload, it allowed justice to continue to operate. Without the wheels of justice continuing to steam along, the Rule of Law may not have been preserved. Today, we have many avenues (arguably a product of Digital Era Governance) that allow for courts to continue along.

Additionally, law firms are finding a way to meet clients and pursue matters with minimal interruption to the level and caliber of service they provide. What might be interesting is whether the proposed Rule 13.05 will allow for solo-practitioner firms to survive COVID-19, like some multi-attorney firms might be able to.

Read the full article from Mr. Pate in the Texas Bar Journal here: https://heinonline.org/HOL/P?h=hein.barjournals/texbarj0083&i=384

Texas Bar Association Proposed Rule 13.05

In the June 2020 Texas Bar Journal, the Committee on Disciplinary Rules and Referenda proposed a new rule regarding the Voluntary Appointment of Custodian Attorney to Act During Disability. Rule 13.05 would allow for another attorney to step-up and help cover another attorney’s matters for up to 120-days if there is a temporary disability.

This would allow for solo-practitioners (one-attorney law offices) to have an ethical co-counsel help them in case of injury or illness. This is a step forward in disaster resiliency within the legal profession. The biggest thing this new rule adds is an extension of the attorney client privilege to the Custodian Attorney.

What is unknown is whether a conflicts check would need to be completed for each new client, in addition to conflicts checks with the disabled attorney. A teleconference on the proposed rule was held on June 18, 2020.

Read the full proposed rule here: https://heinonline.org/HOL/P?h=hein.barjournals/texbarj0083&i=405

Statutory Spine?

Emergency Management derives much of its authority from the law. In some cases, Emergency Management wouldn’t exist without it. This is readily prevalent in various countries throughout the globe who are now considering their statutory framework for disaster response (See https://www.nst.com.my/opinion/columnists/2020/06/597435/case-new-law-manage-disasters).

With that, the 2005 Hyogo Framework for Action (superseded by the Sendai Framework for Disaster Risk Reduction) was adopted by 168 Nations. For most Domestic Emergency Management programs, this isn’t mentioned, but it is somewhat similar to what NIMS did for the United States.

Read more about it by clicking here.

Disaster Legal Services, Unfunded

Its interesting to hear that the Disaster Legal Services program was not funded as part of the larger federal response to COVID-19. Do you think this is due in part to the various response efforts by state bar associations and judiciaries?

Read the Full Article Here

FEMA Public Assistance Appeal: Alternate Project

FEMA Public Assistance Appeal: Alternate Project

PA ID# 183-76220-00; Town of Zebulon

Facts: In an initial eligibility determination, FEMA denied the Applicant’s request to apply for the Public Assistance Alternative Procedures Pilot (PAAP) Program finding the Applicant did not meet the 12-month opt-in deadline and did not provide justification for an extension of time to apply.  The Applicant appealed, explaining that the delay in meeting the PAAP Program deadline was due to the time it spent clarifying the legal responsibility and ownership of the Dam and engaging the community to decide the best use of the Dam.  In the first appeal decision, FEMA denied the request to participate in the PAAP Program, relying on similar bases as mentioned in the initial determination.  The Region also ruled that any appeal of the PW award was untimely.  On second appeal, the Applicant makes similar arguments. 

Conclusion: The appeal is denied.  The Applicant did not meet the deadline to participate in the PAAP Program and did not provide justification for an extension of time; therefore, its project will be processed under standard PA procedures.  In addition, the Applicant did not appeal the amount obligated in PW 1831; therefore, the issue of timeliness concerning that matter is not ripe for review.

Headnotes:

  • Under the PAAP Program, applicants can elect to receive subgrants for large permanent work projects based on agreed-upon fixed cost estimates, instead of the actual costs of completing the eligible scope of work.  At the time of this disaster, the PAAP Program required an applicant and FEMA to agree upon the fixed cost estimate within 12 months after the disaster declaration date.  An applicant could have requested a time extension to that timeframe but had to provide justification. The Applicant did not request participation in the PAAP Program until 4 months after the PAAP Program participation deadline expired and has not justified a time extension.
  • Section 423(a) of the Stafford Act provides that any decision regarding eligibility for assistance may be appealed within 60 days after the date on which the applicant is notified of the award or denial of assistance. The administrative record does not indicate when FEMA notified the Applicant of its appeal rights concerning the PW obligation amount; therefore, the issue of timeliness is not ripe for appeal.

Read FEMA’s Full Analysis Here

FEMA Public Assistance Appeal Decision: Time Limitations/Extensions

FEMA Public Assistance Appeal Decision: Time Limitations/Extensions

PA ID# 071-78355-00; Village of Warwick

Facts: On second appeal, the Applicant states the New York State Division of Homeland Security and Emergency Services granted a 30-month retroactive time extension to April 16, 2014.  The Applicant requests FEMA waive the administrative condition that a project must be completed within POP deadline under section 301 of the Stafford Act.  It lists multiple reasons for the delay in completing permanent repairs, including subsequent disasters, newly discovered additional damages, and a lost PW.

Conclusion: The Applicant did not demonstrate that its failure to complete permanent repair work prior to the POP deadline was the result of the disaster.  Therefore, the request for the administrative waiver under Stafford Act section 301 is not warranted.  Accordingly, this appeal is denied.

Headnotes:

  • 44 C.F.R. § 206.204(d)(2) provides that if FEMA denies a time extension request, the applicant may still be reimbursed for eligible project costs, but only those incurred up to the latest approved completion date.The Applicant completed the original approved $29,366.84 in repair work after the latest approved project completion date, and so those costs are not eligible for reimbursement.
  • Stafford Act § 301 provides that FEMA may also, if so requested by an applicant, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.The Applicant has not demonstrated the failure to complete the permanent repair work within the POP was a result of this disaster.

Read FEMA’s Full Analysis Here