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stated claim under § 1983 against hearing ex- bringing a civil action against any officer or provisions of Correction Law, was rationally aminer who was father of charging officer. employee in his personal capacity for damages based upon such factors as petitioner's release Ordered accordingly. Vines v. Howard, Reprinted arising out of any act within scope of employ- date and lack of disciplinary problems, and thus with permission from 658 F. Supp. 34 (E.D. Pa. ment was applicable to civil action arising out was not an arbitrary and capricious act on part 1987), Copyright © 1987 West Publishing Co. of alleged use of excessive force by correction of jail officials. Judgment reversed, and pro

officers in returning inmates to their cells dur- ceeding dismissed. Rose v. Goldrick, Reprinted

ing a disturbance, notwithstanding claim that with permission from 515 N.Y.S.2d 505 (App. Liability of Prison Director. Parents of inmate officers acted beyond scope of their employ- Div. 1987), ight © 1987 West Publishing murdered in prison brought civil rights action

ment, where force resorted to was occasioned Co. against Puerto Rico Director of Prisons of the by violent acts of inmates themselves and was Administration of Correction. The District in accordance with normal and regular duty of PUBLIC UTILITIES/ENERGY Court... held that Director was not liable for officers in returning inmates to their cells when murder of inmate as alleged result of overcrowding confronted with violent refusals to comply. Low-Income Home Energy Assistance Proand insufficient number of guards, where Direc- Affirmed. Cepeda v. Coughlin, Reprinted with gram. Applicants brought action against county tor took actions to improve prison safety, and permission from 513 N.Y.S.2d 528 (App. Div. social services department, its director, and memhad no knowledge that inmate was under any 1987), Copyright © 1987 West Publishing Co. bers of board of directors for denial of benefits particular danger. Complaint dismissed. Rondon

under crisis intervention program that was part Pinto v. Jimenez Nettleship, Reprinted with

of North Carolina's low-income home energy permission from 660 F. Supp. 255 (D.P.R. 1987), Visitation Privileges of Inmate with AIDS. assistance program. The United States District Copyright © 1987 West Publishing Co. Inmate, who was diagnosed as having Acquired Court ... granted summary judgment in favor Immune Deficiency Syndrome, and his wife

of department, director, and members. Applibrought action seeking judgment directing that cants appealed. The Court of Appeals ... held Inmate's Request to Inspect Records. Inmate they be allowed to participate in family reunion

that: (1) applicants were required to exhaust filed request for prison records. The Supreme program at correctional facility which provides

administrative remedies by using statutorily proCourt, Special Term ... denied petition to annul for conjugal visitation in private trailer. The vided opportunity for fair administrative heardetermination of prison officials denying the Supreme Court, Special Term, ... dismissed peti- ing for individuals whose claims for assistance request, and inmate appealed. The Supreme tion and inmate and wife appealed. The Su- were denied or were not acted upon with reaCourt, Appellate Division ...affirmed. The Court preme Court, Appellate Division, held that: (1) sonable promptness, and (2) statute, which reof Appeals ... held that: (1) inmate's request policy of not allowing inmates with AIDS to quires each state to provide assurances in con"to inspect and review any and all files or participate in program was rational, and (2)

nection with low-income home energy assistance records kept on me and my number of identifi

federal Rehabilitation Act which prohibits dis- program, and statute, which requires states to cation of the New York State Department of

crimination against otherwise qualified handi- reserve reasonable amount for energy crisis inCorrectional Services" reasonably described the capped individuals does not apply where cor

tervention from funds allocated, did not create document sought, and (2) broad allegation that

rectional facility used no federal funds to sup- enforceable rights for applicants, who were defiles contained exempt material was insufficient port program. Affirmed. Doe v. Coughlin, nied benefits, and, therefore, created no ento overcome presumption that records were open Reprinted with permission from 509 N.Y.S.2d forceable rights within meaning of statute for inspection. Reversed and remitted. Konigsberg 209 (App. Div. 1986), Copyright © 1987 West prohibiting deprivation of federal statutory rights v. Coughlin, Reprinted with permission from Publishing Co. (41,676).

under color of state law. Modified and affirmed. 508 N.Y.S.2d 393 (1986), Copyright © 1987

Hunt v. Robeson County Dep't of Social West Publishing Co.

Servs., Reprinted with permission from 816 Request to Use Device to Overcome Handi

F.2d 150 (4th Cir. 1987), Copyright © 1987 cap Limitation. Handicapped correctional fa

West Publishing Co. Offset of Worker's Compensation Benefits. cility inmate brought Article 78 proceeding Prison inmate sought workers' compensation requesting permission to purchase and use lis- Establishing Telephone Utility Rates. Utility for back injury suffered while shoveling snow.

tening and recording device for purpose of customer brought Article 78 proceeding seeking The District Court... held that inmate's workers' corresponding with his family and attorney. The to require state Public Service Commission to compensation benefits could be offset against Supreme Court ... dismissed the petition, and abandon its policy of permitting public utilities maintenance costs of confinement institution, inmate appealed. The Supreme Court, Appel- to include charitable contributions as authorized and inmate appealed denial of his motion to

late Division, held that dismissal of petition expenditures in establishing utility rates and vacate. The Supreme Court... held that award was not abuse of discretion in that possession or seeking to amend PSC's rate order for teleof workers' compensation benefits to inmate use of recording devices by inmates was phone utility to eliminate authorization of such injured at confinement institution cannot be prohibited as security measure. Affirmed. Rosario

practice. The Supreme Court, Special Term ... offset against maintenance costs at institution. v. Scully, Reprinted with permission from 515 denied motion to dismiss, and PSC and utilities Reversed and remanded. Carson v. Wyoming N.Y.S.2d 296 (App. Div. 1987), Copyright appealed. The Supreme Court, Appellate Division State Penitentiary, Reprinted with permission 1987 West Publishing Co.

... affirmed, but granted permission to appeal from 735 P.2d 424 (Wyo. 1987), Copyright ©

and certified question. The Court of Appeals 1987 West Publishing Co.

... held that: (1) acts of PSC in setting rates Transfer. Proceeding was instituted to prohibit which compelled utility customer to pay for

petitioner's transfer from Rockland County jail charitable contributions made by utility constiExcessive Use of Force Against Prisoners.

to Erie County holding center. The Supreme tuted governmental conduct giving rise to cogInmates instituted civil action against correction Court ... granted petition, and jail officials nizable claim by customer that his rights under officers for alleged use of excessive force. The appealed. The Supreme Court, Appellate Divi-, First Amendment had been violated, and (2) Supreme Court ... entered order granting offi- sion, held that transfer of petitioner, who suffered fact that customer's proportionate share of objected cers' motion to dismiss, and inmate appealed.

from hypertension, from Rockland County jail to charitable contributions was small was irreleThe Supreme Court, Appellate Division ... held to Erie County holding center, due to over- vant to determining cognizability of his claim. that provision in the Correction Law against

crowded conditions, was in accordance with Affirmed. Cahill v. Public Serv. Comm’n, lowa 1987), Copyright © 1987 West Publishing New Resource Book on Aging Co. The Villers Foundation has published a report entitled

SENIOR CITIZENS On the Other Side of Easy Street: Myths and Facts About the Economics of Aging. Written in “myth and fact" Pension Funds. Class of beneficiaries to penformat, the report discusses common misconceptions about sion fund brought action against fund and its the economic circumstances of the elderly, e.g., that there trustees alleging that trustees violated proviis little poverty among the elderly or that the elderly poor sions of plan in lowering benefit levels after are adequately protected by "safety net'' programs. Al- employer ceased participation in plan. On cross though, as a group, older Americans have made substantial motions for summary judgment, the United States economic gains during the past quarter century, the authors

District Court... held that fund's trustees unpoint out that many remain poor and economically vulnerable.

reasonably interpreted provision of plan to perSingle copies of the 64-page book are available free

mit trustees to reduce benefits, and plan and from the Villers Foundation, 1334 G St., NW, Washing

trustees appealed. The Court of Appeals ... held

that: (1) Court of Appeals will reverse decision ton, DC 20005.

of administrator of ERISA plan only if decision is arbitrary, capricious or made in bad faith, and

(2) plain language of plan provision was ambigReprinted with permission from 513 N.Y.S.2d (1) court had jurisdiction to issue declaratory

uous, and thus, trustees chose reasonable meth656 (1986), Copyright © 1987 West Publishing judgment under Administrative Procedure and

od to interpret ambiguity by permitting trustees Co. Texas Register Act or Uniform Declaratory Judg

to reduce benefits attributable to contribution ment Act, and suit was not barred by sovereign

rate increases in order to cure actuarial imbalimmunity; (2) statute authorized appeals by non

ance after employer withdrew from participaRefund of Excessive Fuel Adjustment Charges. resident ratepayers of municipally owned utility,

tion in fund. Reversed and remanded. McDaniel Hearings were held before Public Service Com- and standards which governed review were set

v. National Shopmen Pension Fund, Reprinted mission to determine whether power company forth in separate sections of Public Utilities

with permission from 817 F.2d 1370 (9th Cir. had been imprudent in certain past decisions Regulatory Act so delegation was not unconsti

1987), Copyright © 1987 West Publishing Co. and practices and whether costs of improve- tutional; (3) for purposes of those appeals, ments were passed on to consumers through "utility” and “public utility" encompassed mu

SOCIAL SECURITY/SSI rate adjustments under fuel adjustment clauses. nicipally owned utilities; and (4) scope of ComThe Commission found that power company mission's review in nonresident ratepayer ap

Disability Under Social Security Act. Social had acted imprudently in certain circumstances peal was by trial de novo. Reversed and rendered.

security disability claimant, who was French and ordered it to refund excessive fuel adjust- Public Util. Comm’n v. City of Austin,

speaking Canadian citizen, sought review of ment charges. Power company petitioned for Reprinted with permission from 728 S.W.2d 907

final action by Secretary of (HHS] denying review. The Supreme Court... transferred case. (Tex. Ct. App. 1987), Copyright © 1987 West

benefits to him under the Social Security Act. The Supreme Court, Appellate Division ... a Publishing Co.

On claimant's motion to reverse and governnulled Commission's order for refund and remitted matter. Permission to appeal was granted. RURAL ISSUES

ment's motion to affirm, the United States Dis

trict Court... affirmed, and claimant appealed. The Court of Appeals ... held that: (1) Com- Farm Foreclosures. Farmers brought action

The Court of Appeals ... held that: (1) claimmission had implied power to order refund of against Federal Reserve Board, the Farm Credit

ant's current application for benefits was not rates that were incurred pursuant to fuel adjust- Association, and agricultural lenders alleging

barred by res judicata due to his earlier claim; ment clause and that were imprudently incurred; defendants had violated various statutes and had

(2) failure of (ALJ) to adequately develop re(2) statutes authorizing Commission to order implemented policies resulting in farm foreclo

cord required remand; (3) (ALJ) failed to give refund of money incurred in various situations sures. On motions to dismiss, the District

adequate weight to treating physicians' reports; did not prohibit Commission from ordering re- Court ... held that: (1) complaint constituted a

and (4) on remand, the (ALJ) must consider fund of automatically recovered fuel expenses generalized grievance better resolved in the leg

fact that one characteristic of disabling mental that were not subjected to Commission review islative than the judicial arena; (2) use of state

illness is presence of occasional symptom free for reasonableness in regular rate proceeding; law to foreclose is not sufficient to allege a

periods, and thus, basic pattern of alternating and (3) Commission was not required to invoke claim under civil rights statute; (3) the Farm

episodes of acute and less acute symptoms temporary rate procedure in order to order re- Credit Act and statute declaring congressional

would not preclude finding of total disability. fund of excessive fuel expenses. Reversed. Ni- policy of fostering and encouraging family farms

Vacated and remanded. Poulin v. Bowen, agara Mohawk Power Corp. v. New York do not create an implied cause of action; (4)

Reprinted with permission from 817 F.2d 865 Public Serv. Comm'n, Reprinted with permis- there was no violation of the Securities Act in

(D.C. Cir. 1987), Copyright © 1987 West Pubsion from 507 N.E.2d 287 (N.Y. 1987), Copy- connection with issuance of Federal Land Bank

lishing Co. (37,177). right © 1987 West Publishing Co.

Association stock; (5) claim that federal defen-
dants manipulated interest rates fell within dis-

cretionary function exception to the Federal Delegating Authority to Review Utility Rates. Tort Claims Act; (6) the lowa Business Corpo- Denial of Disability Benefits. Claimant appealed City sought declaration that legislature's attempted rations Act did not require lenders, as foreign

from order of the United States District Court delegation of authority to review rates of mu- corporations, to obtain certificates of authority; ... which affirmed denial of disability benefits. nicipally owned utilities to the Public Utilities and (7) alleged breach of fiduciary duty to The Court of Appeals ... held that: (1) ALI's Commission was unconstitutional due to absence farmers by lenders was compulsory counter- determination of claimant's ability to occasionof legislatively established standards. The ... claim in state foreclosure actions, precluding ally carry ten pounds did not support finding District Court... rendered declaratory judgment bringing of later separate action for damages. that she could perform light work; (2) it was not in favor of city, and Commission and ratepayers Motions granted. Kolb v. Naylor, Reprinted error not to consider physician's report; and (3) appealed. The Court of Appeals . . . held that: with permission from 658 F. Supp. 520 (N.D. grids could not be automatically applied to deny

an

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decree as to paternity be obtained prior to the insured person's death, rather than afterwards, does not violate the due process clause of the Fifth Amendment. Affirmed. Trammel ex rel. Trammel v. Bowen, Reprinted with permission from 819 F.2d 167 (7th Cir. 1987), Copyright © 1987 West Publishing Co.

disability in view of claimant's environmental expected to last for continuous period of 12
restrictions due to breathing problems. Vacated months, claimant is entitled to disability bene-
and remanded. Wooldridge v. Bowen, Reprinted fits and may engage in trial work period even
with permission from 816 F.2d 157 (4th Cir. after qualifying for such entitlement; under So-
1987), Copyright © 1987 West Publishing Co. cial Security Act's definition of disability, claim-

ant need not actually be impaired for 12 months

to be entitled to benefits. Vacated and remanded.
Prisoner's Right to Be fits. Claimant sought McDonald v. Bowen, Reprinted with permis-
judicial review of determination by Secretary of

sion from 818 F.2d 559 (7th Cir. 1986), Copy-
(HHS) denying disability benefits. The United right © 1987 West Publishing Co.
States District Court ... decided that termina-
tion of benefits for claimant's felony conviction
did not violate prohibition against ex post facto Substantial Gainful Activity. Social security
laws. Claimant appealed. The Court of Appeals disability claimant appealed from denial by Sec-
held that statute, which authorizes termination retary of (HHS) of his application for establish-
of benefits during any month of claimant's ment of period of disability and for disability
incarceration for felony, was not “ex post facto benefits. The United States District Court...
law” when applied to claimant who committed affirmed and claimant appealed. The Court of
act resulting in felony conviction prior to effec- Appeals ... held that: (1) in order for “previous
tive date of statute. Affirmed. Caldwell v. work” which had been performed by claimant
Heckler, Reprinted with permission from 819 to be considered past relevant work" in deter-
F.2d 133 (6th Cir. 1987). Copyright © 1987 mining eligibility for benefits, such work must
West Publishing Co.

first rise to level of substantial gainful activity;
(2) interpretative rulings by Secretary are bind-

ing upon (SSA) and are capable of being relied
Retroactive Awards. Appeal was taken from upon as precedent until they are either expressly
order of the United States District Court... which superseded, modified, or revoked by later legis-
limited retroactive award of social security disa- lation, regulations, court decisions or rulings;
bility benefits to one-year period. The Court of and (3) (ALJ) and district court erred in deny-
Appeals ... held that: (1) statutory limit on ret- ing claimant disability benefits at step four of
roactive benefits applies to one who does not

sequential evaluation process on basis of findfile for benefits because of the disability, as in ing that claimant could return to his past relethe case of mental incompetency, and (2) appli- vant work as loan processor, which had already cation of statute to one suffering mental disabil- been determined by (SSA) not to have constiity does not violate due process or equal protec

tuted substantial gainful activity, and thus, retion. Affirmed. Yeiter v. Secretary of HHS,

mand was necessary for inquiry as to whether Reprinted with permission from 818 F.2d 8 (6th

claimant retained ability to perform any other
Cir. 1987), Copyright © 1987 West Publishing work within national economy. Reversed and
Co.

remanded. Lauer v. Bowen, Reprinted with
permission from 818 F.2d 636 (7th Cir. 1987),

Copyrighi © 1987 West Publishing Co.
Presumption of Continuing Disability. In so-
cial security disability cases, the United States
District Court... held that the Secretary had Dependent Insurance Benefits. Dispute arose
failed to make findings necessary to overcome

over child's entitlement to dependent insurance
presumption of continuing disability. Thereaf- benefits. The United States District Court...
ter, the Secretary filed motion for remand under upheld decision to deny benefits, and child
rule relating to relief from judgment. Motion appealed. The Court of Appeals held that re-
was denied, and the Secretary appealed. The ceipt by child of three dollars per day from
Court of Appeals ... held that the district court county department of public welfare, whether
had no discretion to deny motion to remand or not substantial, was a “regular contribution"
“medical improvement" actions pursuant to the disqualifying child from receiving insurance ben-
Social Security Disability Benefits Reform Act efits available to dependent minor children.
of 1984. Vacated and remanded with instruc- Affirmed. Pulley ex rel. Pulley v. Bowen,
tions. Walker v. Secretary of HHS, Reprinted Reprinted with permission from 817 F.2d 453
with permission from 817 F.2d 26 (6th Cir. (7th Cir. 1987), Copyrighi © 1987 West Pub-
1987), Copyright © 1987 West Publishing Co. lishing Co.

Ability to Perform Past Work. Disability claimant, who was 56 years old and whose past relevant work experience was that of service station owner and operator, appealed Secretary of (HHS's) denial of his claim. The United States District Court... affirmed, and claimant appealed. The Court of Appeals ... held that: (1) Secretary erred in classifying claimant's past relevant work as “light work” without first developing detailed description of duties and responsibilities of owner-operator of service station; (2) in determining that claimant had residual functional capacity to perform light work, Secretary failed to afford proper weight to treating physicians' opinion; and (3) denial of benefits due to claimant's failure to lose weight or obtain knee brace was inappropriate in absence of any evidence that if claimant had done so his ability to work would have been restored. Reversed and remanded. Schnorr v. Bowen, Reprinted with permission from 816 F.2d 578 (11th Cir. 1987), Copyright © 1987 West Publishing Co.

Substantial Gainful Employment. Claimant appealed denial of application for supplemental security income and disability insurance benefits. The United States District Court... affirmed, and claimant appealed. The Court of Appeals ... held that: (1) finding concerning transferability of claimant's skills and existence of substantially gainful employment in the economy was supported by substantial evidence, and (2) evidence tendered by claimant to appeals council in his attempt to show that insufficient number of small appliance repair positions existed in the economy was not "new and material evidence" which council was required to review. Affirmed. Allen v. Bowen, Reprinted with permission from 816 F.2d 600 (17th Cir. 1987), Copyright © 1987 West Publishing Co.

Definition of “Disability.” Claimant sought Children's Benefits. Claimants appealed from
disability benefits, which were granted by (ALJ).

a decision of the Secretary of (HHS) denying
Appeals Council reversed, and the United States their application for children's benefits. The
District Court... affirmed. On appeal, the

United States District Court... upheld the deciCourt of Appeals ... held that when claimant sion, and claimants again appealed. The Court has been disabled for five consecutive months of Appeals ... held that statutory condition of and suffers from an impairment which can be eligibility for children's benefits that a court

SSI Eligibility of Voluntary Residents of Transitional Living Program. Action was brought challenging denial of supplemental security income benefits to voluntary residents in a transitional living program operated by county department of mental health. On plaintiff's motion for certification of class and for summary judgment, and defendant's motion to affirm decision denying benefits, the District Court... held that: (1) plaintiffs failed to satisfy numerosity requirement of class action rule, and (2) plaintiffs were “inmates" for purposes of ineligibility for SSI benefits. Plaintiffs' motions denied

and defendant's motion granted. McCauley v. Bowen, Reprinted with permission from 659 F. Supp. 292 (D. Kan. 1986), Copyright © 1987 West Publishing Co.

refusal of employer to conform to provisions of state or federal law pertaining to hours, wages, or other conditions of work, and, thus, employees were not entitled to benefits. Affirmed. Anderson v. Board of Review of the Indus. Comm'n of Utah, Reprinted with permission from 737 P.2d 211 (Utah 1987), Copyright © 1987 West Publishing Co.

Earnings Record Amendments. Retired employee sought review of Secretary of (HHS’s] partial denial of application to amend earnings records for social security retirement benefits. The District Court... held that: (1) records of Secretary were not conclusively presumed accurate for quarters in which records for retired employee showed no entries, but records for those quarters enjoyed only ordinary presumption of accuracy, where employee's earnings were wages reported on quarterly basis; (2) Secretary was permitted to alter records to include wages paid in any quarter for which Secretary had no entry, where earnings were wages reported on quarterly basis; and (3) employee's W-2 form showing disparity between gross wages and social security contributions permitted Secretary to conform records to wage reports after time limit for requesting change passed. Reversed and remanded. Mancuso v. Bowen, Reprinted with permission from 659 F. Supp. 172 (S.D.N.Y. 1987), Copyright © 1987 West Publishing Co.

Unilateral Changes in Employment Terms and Conditions. The Supreme Court of Appeals of West Virginia has decided that an unemployment compensation claimant is eligible for benefits because substantial unilateral changes in terms and conditions of his employment constituted “good cause" to resign from his job in a nursing home. Claimant was originally hired as an orderly, but the employer changed his job assignment to that of nursing assistant and did not attempt to train claimant for his new role. The new position involved skills claimant did not possess, and did not carry a pay increase. The unemployment compensation claimant had appealed the decision of the Department of Employment Security, which held that he left his job voluntarily without good cause involving fault on the part of the employer. However, the circuit court affirmed the Department's decision and the claimant appealed by way of certiorari to the supreme court. Hunt v. Rutledge, 354 S.E.2d 619 (W. Va. 1987).

damages even in the absence of a statute authorizing such relief. Instead, the Court relied on another of its decisions, Chappell v. Wallace, 462 U.S. 296 (1983), in which it held that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers because of the need for special regulations in relation to military discipline and Congress's plenary control over rights, duties, and responsibilities in the framework of the military establishment. Respondent sued unknown individual federal officers for violating his constitutional rights, claiming that these officials secretly administered doses of LSD to him pursuant to an Army plan to study the effects of the drug on human subjects. He alleged that the United States' failure to warn, monitor, or treat him after he was discharged from the Army constituted a tort (based on Bivens) that, because it occurred subsequent to his discharge, was not “incident to service." The Eleventh Circuit affirmed the district court opinion that Chappell only bars Bivens actions when “a member of the military brings a suit against a superior officer for wrongs which involve direct orders in the performance of military duty and the discipline and order necessary thereto." In reversing the appellate court judgment, the Court observed that a test for liability that depends on the extent to which particular suits would call into question military discipline and decisionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters. The “incident to service'' test, by contrast, provides a line that is relatively clear and that can be discerned with less extensive inquiry into military matters. The Court also held that the appellate court did not have jurisdiction to enter an order that plaintiff might have a viable Federal Tort Claims Act (FTCA) claim against the U.S., because the FTCA claims were dismissed early in the suit. United States v. Stanley, 55 U.S.L.W. 5101 (U.S. June 25, 1987).

UNEMPLOYMENT COMPENSATION

Eligibility of Operators-Deliverers. Operators deliverers with delivery company brought applications for unemployment benefits. The Unemployment Insurance Appeal Board found claimants were entitled to benefits and appeal was taken. The Supreme Court, Appellate Division ... affirmed award of benefits to one claimant and reversed award as to two claimants ... and appeal was taken. The Court of Appeals held that substantial evidence supported determination of Unemployment Insurance Appeal Board that operators deliverers with delivery companies were employees, rather than independent contractors, and thus operators deliverers were entitled to benefits. Orders of Appellate Division reversed and one order affirmed. Rivera, In re, Reprinted with permission from 512 N.Y.S.2d 14 (1986), Copyright © 1987 West Publishing Co.

Eligibility of Employee Who Tested Positive on Drug Test. Terminated employee brought application for employment compensation benefits. The State Employment Commission awarded benefits and employer appealed. The Circuit Court ... reversed and employee appealed. The Court of Appeals ... held that evidence that employee tested positive on drug test was insufficient to establish that employee willfully disregarded company's rule, prohibiting employee from reporting to work under influence, so as to constitute misconduct and warrant denial of unemployment compensation benefits. Reversed. Blake v. Hercules, Inc., Reprinted with permission from 356 S.E.2d 453 (Va. Ct. App. 1987), Copyright © 1987 West Publishing Co.

VETERANS/MILITARY

Eligibility of Striking Employees. Striking employees appealed decision of Industrial Commission Board of Review that denied eligibility for unemployment compensation during period of strike. The Supreme Court... held that: (1) work stoppage occurred as result of a strike, where employer permitted employees to work after beginning of strike; (2) statute, that makes employee ineligible for unemployment compensation, if unemployment is due to stoppage of work which exists because of a strike, did not permit application of constructive lockout doctrine; and (3) strike was not caused by failure or

Military Officials' Immunity from Money Damages. The United States Supreme Court has held that courts should decline to permit actions for nonstatutory money damages for injuries arising out of activity incident to military service. The Court refused to apply a constitutional claim based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Court held that an individual victimized by a search and seizure that violates the fourth amendment can sue the offending federal officials for

Approval of Settlement in "Agent Orange” Class Action. Appeals were taken from orders of United States District Court... which certified class of plaintiffs in Agent Orange litigation and approved settlement of claims of servicemen and their relatives against manufacturers. The Court of Appeals ... held that: (1) court had diversity jurisdiction; (2) class was properly certified on basis of centrality of question of military contractor defense; (3) notice given to class was adequate; (4) Court was not required to hold hearing on fairness of settlement before giving notice to class of settlement; and (5) settlement of $180 million was properly approved. Affirmed. “Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 145 (2d Cir. 1987), Copyright © 1987 West Publishing Co. (30,873).

“Agent Orange” Settlement. Appeal was taken from order of the United States District

Veterans' Health Care: Actions and Court... which approved plan for distribution

Interactions of fund created by settlement of Agent Orange class action. The Court of Appeals ... held that: (1) appeal by lead counsel was timely; (2) it

Paralyzed Veterans of America has published this study, was not an abuse of discretion to adopt distribu

prepared by the American Public Health Association, that tion plan which did not require proof that veter

discusses the growing needs in, and demands on, the veterans' an's death or disability resulted from exposure

health care system. The authors maintain that policies designed to Agent Orange in view of trial court's conclu

to constrain costs of the veterans' health care system are not sion that causation could not be shown for any

being coordinated with the policies of other health programs. individual or any disease; but (3) it was improp

The study is published in three parts: a 77-page final report; a er to devote a portion of the fund to establish a

14-page executive summary; and a 162-page detailed study of foundation to fund projects and services that

four Veterans Administration medical districts. Copies of Veterwould benefit the entire class, although court

ans' Health Care: Actions and Interactions can be obtained from could set aside a portion of the settlement

Paralyzed Veterans of America, Aton; MARAD, 801 18th St., proceeds for particular programs designed to

NW, Washington, DC 20006, (202) 872-1300. assist the class. Affirmed in part, reversed in part, and remanded. “Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission Claims of Wives and Children of Servicemen physician who claimed that he suffered ailments from 818 F.2d 179 (2d Cir. 1987), Copyright © Exposed to Agent Orange. Appeal was taken

as a result of exposure to Agent Orange while 1987 West Publishing Co. (30,873).

from order of the United States District Court in Vietnam working for the United States Agen... which dismissed direct claims against gov- cy for International Development. The United ernment by wives and children of servicemen

States District Court... dismissed physician's Servicemen's Exposure to Agent Orange. Ap- exposed to Agent Orange in Vietnam. The claim for failure to comply with discovery orpeal was taken from order of the United States Court of Appeals . . . held that Feres doctrine ders and granted summary judgment against District Court... which entered summary judg- precluded court from exercising jurisdiction over

other claimants, and appeals were taken. The ment in favor of manufacturers of Agent Or- the claims. Affirmed in part and vacated and

Court of Appeals ... held that: (1) dismissal of ange in actions brought by servicemen and remanded in part. "Agent Orange” Prod. Liab. physician's claim for failure to complete deporelatives of servicemen who were exposed to Litig., In re, Reprinted with permission from sition was proper; (2) filing of principle Agent Agent Orange in Vietnam. The Court of Appeals 818 F.2d 201 (2d Cir. 1987), Copyright © 1987

Orange class action on behalf of servicemen ... held that: (1) government possessed, at per- West Publishing Co. (30,873).

and their relatives did not toll limitation of tinent times, information as great as or greater

actions on plaintiffs' claims; (3) government's than that possessed by manufacturers with re

decision to use Agent Orange as defoliant was spect to association between dioxin exposure Government's Liability for Contribution to

the exercise of a discretionary function within and cases of chloracne and liver damage, so Agent Orange Settlement. Manufacturers of

that exception to the Tort Claims Act; and (4) that manufacturers were entitled to govAgent Orange who had settled with servicemen

wrongful death claim was barred by military ernment contracted defense, and (2) weight of and their relatives in class action arising out of

contractor defense. Affirmed in part and vacatpresent scientific evidence does not establish

ed and remanded in part. “Agent Orange" injuries allegedly resulting from exposure of that Agent Orange injured personnel in Vietnam,

Prod. Liab. Litig., In re, Reprinted with perservicemen to Agent Orange in Vietnam sought so that manufacturers could not have reached contribution and indemnity from United States.

mission from 818 F.2d 210 (2d Cir. 1987), any duty to inform the government of such The United States District Court... dismissed

Copyright © 1987 West Publishing Co. (30,873). hazards. Affirmed. “Agent Orange" Prod. Liab.

and manufacturers appealed. The Court of Litig., In re, Reprinted with permission from Appeals ... held that: (1) Feres and Stencel doc

Fee Sharing Agreement in "Agent Orange" 818 F.2d 187 (2d Cir. 1987), Copyright © 1987 trines precluded recovery; (2) chemical manu

Class Action. One member of plaintiff's manWest Publishing Co. (30,873). facturers who insisted that they were not at fault

agement committee in Agent Orange class accould not contend that United States was joint tion appealed from order of the United States tort-feasor, and (3) if manufacturers had valid

District Court... which upheld fee sharing agreeServicemen's Exposure to Agent Orange. claim against Government based on Govern- ment between lead counsel. The Court of Servicemen and their relatives brought Federal ment's superior knowledge of dangers imposed Appeals ... held that agreement under which Tort Claims Act action against United States to by Agent Orange, they could have no liability certain members of management committee would recover for injuries resulting from servicemen's to servicemen as to which United States could

advance funds for litigation expenses and reexposure to Agent Orange in Vietnam. The be required to indemnify them. Affirmed. "Agent ceive threefold return on that investment out of United States District Court... dismissed and Orange" Prod. Liab. Litig., In re, Reprinted the fee settlement was invalid and would not be plaintiffs appealed. The Court of Appeals... held with permission from 818 F.2d 204 (2d Cir.

enforced in view of its potential for creating that: (1) class counsel could not assert appeal of 1987), Copyright © 1987 West Publishing Co.

conflict between counsel and the class. Redenial of class certification on behalf of individ- (30,873).

versed. “Agent Orange" Prod. Liab. Litig., ual plaintiffs; (2) liability was barred by the

In re, Reprinted with permission from 818 F.2d Feres doctrine; and (3) liability was barred by

216 (2d Cir. 1987), Copyright © 1987 West discretionary function exception to the Federal Exposure to Agent Orange During Testing.

Publishing Co. (30,873). Tort Claims Act. Affirmed in part and dismissed Persons who claimed injuries as the result of in part. "Agent Orange” Prod. Liab. Litig.,

exposure to Agent Orange while it was being Attorney Fees from "Agent Orange” SettleIn re, Reprinted with permission from 818 F.2d

tested in Hawaii, and widow of one such per- ment Fund. Appeal was taken from order of 194 (2d Cir. 1987), Copyright © 1987 West

son, brought action against manufacturers, Unit- the United States District Court... which awarded Publishing Co. (30,873).

ed States, and University of Hawaii. Similar attorney fees from fund resulting from settleaction was brought against manufacturer by ment of Agent Orange class action against man

9

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