FIRST CIRCUIT - CONTRACTS WITH GOVERNMENTAL ENTITIES - STAFFORD ACT - PREEMPTION Something I told my students over the years and told friends who frequently didn't believe it - when you deal with the government you do so at your own risk of its authority. On Friday, the 1st Circuit affirmed a lower court decision that dismissed a contractual dispute in which a contractor that responded to an emergency affecting Puerto Rico and expended significant time, energy and effort on behalf of a municipality in Puerto Rico sought to recover its perceived contractually agreed upon sum. Why, Puerto Rico law at the time required that a contract with a Puerto Rico municipality be in writing and be submitted to the Comptroller within a specified time. In the facts of this case, the latter did not happen and the court concluded that neither had the former. While the Mayor had signed a Letter of Authorization, it was not countersigned by the Plaintiff nor did it incorporate the major terms of the proposal and scope of work (I may be editing these facts down quite a bit, so read the case for more detail). Sometimes when a court goes into detail about arguments not preserved for appeal, you wonder if the court is miffed with counsel for the offending party, as those statements seem to suggest some lack on the part of counsel that might lead to a malpractice action. OUCH. Could be wrong but correct me if I'm wrong. One of those arguments involved a claim that the Stafford Act preempted Puerto Rico law and would have afforded the Plaintiff recovery. I'm not sure of the extent to which the Stafford Act might preempt local procurement laws but as you address an emergency, you need to make that assessment as FEMA may not cover your costs. DISASTER SOLUTIONS VS CITY OF SANTO ISABEL http://media.ca1.uscourts.gov/pdf.opinions/20-1841P-01A.pdf FIRST CIRCUIT - CLIMATE CHANGE - NATURAL GAS - BEST AVAILABLE CONTROL TECHNOLOGY Also on Friday, the 1st Circuit concluded that the MADEP was not wrong in deciding that a company could use natural gas to operate a turbine at its natural gas compressor station and was not in violation of the MDEP regulations that required it to use "best available control technology" . The cities had sought to require the company to use electric motors to reduce the nitric oxide emissions. Essentially, the Court upheld a decision that found the BACT analysis eliminated the electric motor alternative as not being cost effective as a solution. CITY OF QUINCY VS MADEP http://media.ca1.uscourts.gov/pdf.opinions/21-1131P-01A.pdf TENTH CIRCUIT - ADA - REASONABLE ACCOMODATION - LEAVE AS ACCOMODATION -FMLA Today, the 10th Circuit decided an ADA case involving an employee who has PSTD associated with being the victim of domestic violence. The employee worked in the courts as an in court clerk and found that domestic violence cases in the courts triggered her PTSD. Her medical providers agreed and she asked for accommodations. There was a fair amount of interactivity over the course of several months. The gist of the decision in this case seems to be that when the employee asked to have leave extended beyond the FMLA requirement as an ADA accommodation, the employer had the duty to do so or to show why it was unreasonable to do so. The case also discusses the back and forth between employee and employer in considering accommodations for her PTSD and the court sided with the employee in concluding the employee had done enough to raise the need for accommodation in seeking another working environment. Bear in mind this is pleading stage where the lower court granted summary judgment to the city employer. Clearly, this case as others raise some difficult issues for employers. How long must you leave open a position to grant leave to an employee under the ADA or do you need to leave the position open, fill it and then offer the employee some other position for which they qualify on return form leave if such a position is available? This might make for a good discussion as part of a program on Employment law that IMLA is planning for later in 2022. For managers, these issues can be quite difficult and finding the correct approach to addressing requests for accommodation while not incurring liability makes for a very difficult minefield to traverse. HERMANN VS SALT LAKE CITY CORPORATION https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110621392.pdf Charles W. Thompson, Jr. Executive Director/General Counsel P: (202) 466-5424 x7110 M: (240) 876-6790 D: (202) 742-1016 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's 2022 Mid-Year Seminar<https://imla.org/seminars/>, April 8-11, 2022 in Washington, D.C.! IMLA's 2022 Annual<https://imla.org/annual-conference/> Conference, October 19-23, 2022 in Portland, OR! 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