against tribal housing authority in federal court based on diversity jurisdiction. Affirmed. United States v. Turtle Mountain Hous. Auth., Reprinted with permission from 816 F.2d 1273 (8th Cir. 1987), Copyright © 1987 West Publishing Co.

State Taxes on Indian Minerals. Indian tribe brought action against Montana, seeking declaratory and injunctive relief against imposition of the state's severance and gross proceeds taxes on coal belonging to the tribe. The District Court... dismissed. The tribe appealed. The Court of Appeals... reversed and remanded. On remand, the District Court... upheld application of taxes to coal mined from certain area and abstained from deciding whether taxes could be imposed on coal mined on the reservation proper. The tribe appealed. The Court of Appeals... held that: (1) Montana's taxes were preempted by federal law and policy; (2) the taxes were void for infringing on tribal sovereignty; and (3) question concerning whether taxes could be applied to coal mined on the reservation properly presented justiciable controversy. Reversed. Crow Tribe of Indians v. Montana, Reprinted with permission from 819 F.2d 895 (9th Cir. 1987), Copyright © 1987 West Publishing Co.

Indian Mineral Leasing Act. Crow Indian tribe filed civil action challenging validity of Montana coal severance and gross proceeds taxes and seeking various forms of relief. The District Court... dismissed suit. On appeal, the Court of Appeals... reversed and remanded. The federal government and coal producer intervened. On remand, the District Court...held that: (1) no case or controversy existed warranting declaration as to validity of tax with respect to coal mined on reservation, and (2) taxes were valid insofar as applied to production of coal held by United States in trust for Crow tribe on ceded strip of land, as taxing statutes were not preempted by 1938 Indian Mineral Leasing Act or regulations promulgated thereunder, did not violate right of tribal self-government, and did not impermissibly burden interstate commerce or tax tribal trust property. Ordered accordingly. Crow Tribe of Indians v. United States, Reprinted with permission from 657 F. Supp. 573 (D. Mont. 1985), Copyright © 1987 West Publishing Co.

Property Division in Divorce. Wife, who was enrolled member of Stockbridge-Munsee Indian Tribe, brought divorce action against husband, who was also member of tribe. The Circuit Court... entered judgment of divorce which included in property division value of home located on Indian reservation, and wife appealed, alleging trial court lacked authority to include value of home in property division. The Court

of Appeals... held that: (1) order requiring wife to pay husband $25,000 as offset of value of home transferred to wife by Indian tribe did not violate federal law or damage any federally recognized program, and (2) application of state domestic relations law did not infringe upon right of Stockbridge-Munsee Indians to establish and maintain tribal self-government. Affirmed. Jacobs v. Jacobs, Reprinted with permission from 405 N.W.2d 668 (Wis. Ct. App. 1987), Copyright © 1987 West Publishing Co.

PRISONS

Representation of Prisoner in Civil Court Proceeding. Prisoner brought civil rights action against state trial judge, who had presided over mortgage foreclosure action in state court during period in which prisoner was incarcerated. The United States District Court... dismissed complaint for failure to state claim, on ground that state trial judge enjoyed judicial immunity, and prisoner appealed. The Court of Appeals held that: (1) dismissal of complaint on ground that state trial judge was immune from prisoner's claim for injunctive relief was erroneous, and (2) federal district court lacked jurisdiction over action in which prisoner sought review by federal court of final determination made in state judicial proceeding, and thus, action was properly dismissed. Affirmed. Hollins v. Wessel, Reprinted with permission from 819 F.2d 1073 (11th Cir. 1987), Copyright © 1987 West Publishing Co.

Religious Services. Illinois inmates, who were members of El Rukn Suni Mosque, brought civil rights litigation alleging that they were entitled to hold separate religious services and wear [and] possess emblems showing membership in their organization. The District Court ... held that: (1) restrictions placed by state prison officials on inmates' holding of separate religious services and wearing and possessing of emblems were necessitated by legitimate security concerns and did not violate the First Amendment in light of evidence showing that inmates were a street gang and continued their criminal activity while incarcerated, and (2) policy which denied inmates right to wear or possess identifying emblems did not deny equal protection to inmates. Relief denied and complaint dismissed. Faheem-El v. Lane, Reprinted with permission from 657 F. Supp. 638 (C.D. Ill. 1986), Copyright © 1987 West Publishing Co.

Equal Educational Opportunities in Prison. Female inmates petitioned to find Director of Michigan Department of Corrections and prison officials in contempt for failure to comply with court order to provide female inmates with equal educational opportunities. The District Court... held that failure of Department to comply with court order required appointment of

administrator to design and implement educational programs for female inmates on parity with male inmates and to implement required program for postsecondary degree program. Administrator appointed. Glover v. Johnson, Reprinted with permission from 659 F. Supp. 621 (E.D. Mich. 1987), Copyright © 1987 West Publishing Co. [23,446].

Religious Practices of Native American Inmate. Native American inmate brought action against State Department of Correctional Services and prison officials for failure to comply with prior consent decree and for allegedly imposing restrictions on religious expression in violation of First Amendment. The District Court... held that: (1) Department adequately complied with affirmative action, Native American studies, and religious practices provisions of prior consent decree; (2) refusal to allow inmate in protective custody to participate in sweat lodge ceremonies did not unconstitutionally infringe on inmate's religious expression; but (3) Department's practice of providing only one official medicine man unconstitutionally infringed on inmate's religious beliefs where inmate held contrary beliefs. Ordered accordingly. Indian Inmates of Neb. Penitentiary v. Gunter, Reprinted with permission from 660 F. Supp. 394 (D. Neb. 1987), Copyright © 1987 West Publishing Co.

Long-Term Segregation. Inmates filed § 1983 action, attacking long-term segregation of certain prisoners and, in particular, alleging the denial of meaningful periodic review of continued confinement in administrative segregation, denial of congregational religious services in segregation, and denial of visitation by inmates' children under the age of 18. The District Court... held that: (1) decision not to transfer inmates from medium security setting to higher security prison where they could be placed in population could not amount to violation of inmates' constitutional rights; (2) denial of visitation privileges is not unreasonable or discriminatory and does not amount to abridgement of federal or constitutional right; and (3) case would be remanded for consideration of claims of denial of congregational religious services to those in segregation. Remanded. Ford v. Beister, Reprinted with permission from 657 F. Supp. 607 (M.D. Pa. 1986), Copyright © 1987 West Publishing Co.

Disciplinary Proceedings. Inmate brought action against hearing examiner and correction officers under §§ 1983, 1985, and 1986. The District Court... held that: (1) inmate failed to state claim under §§ 1985 and 1986 by failing to allege conspiracy; (2) fact that hearing examiner was coworker of officer who charged inmate with misconduct was not violative of inmate's right to due process; and (3) inmate

stated claim under § 1983 against hearing examiner who was father of charging officer. Ordered accordingly. Vines v. Howard, Reprinted with permission from 658 F. Supp. 34 (E.D. Pa. 1987), Copyright © 1987 West Publishing Co.

Liability of Prison Director. Parents of inmate murdered in prison brought civil rights action against Puerto Rico Director of Prisons of the Administration of Correction. The District Court... held that Director was not liable for murder of inmate as alleged result of overcrowding and insufficient number of guards, where Director took actions to improve prison safety, and had no knowledge that inmate was under any particular danger. Complaint dismissed. Rondon Pinto v. Jimenez Nettleship, Reprinted with permission from 660 F. Supp. 255 (D.P.R. 1987), Copyright©1987 West Publishing Co.

Inmate's Request to Inspect Records. Inmate filed request for prison records. The Supreme Court, Special Term... denied petition to annul determination of prison officials denying the request, and inmate appealed. The Supreme Court, Appellate Division...affirmed. The Court of Appeals... held that: (1) inmate's request "to inspect and review any and all files or records kept on me and my number of identification of the New York State Department of Correctional Services" reasonably described the document sought, and (2) broad allegation that files contained exempt material was insufficient to overcome presumption that records were open for inspection. Reversed and remitted. Konigsberg v. Coughlin, Reprinted with permission from 508 N.Y.S.2d 393 (1986), Copyright © 1987 West Publishing Co.

Offset of Worker's Compensation Benefits. Prison inmate sought workers' compensation for back injury suffered while shoveling snow. The District Court... held that inmate's workers' compensation benefits could be offset against maintenance costs of confinement institution, and inmate appealed denial of his motion to vacate. The Supreme Court... held that award of workers' compensation benefits to inmate injured at confinement institution cannot be offset against maintenance costs at institution. Reversed and remanded. Carson v. Wyoming State Penitentiary, Reprinted with permission from 735 P.2d 424 (Wyo. 1987), Copyright © 1987 West Publishing Co.

Excessive Use of Force Against Prisoners. Inmates instituted civil action against correction officers for alleged use of excessive force. The Supreme Court... entered order granting officers' motion to dismiss, and inmate appealed. The Supreme Court, Appellate Division... held that provision in the Correction Law against

bringing a civil action against any officer or employee in his personal capacity for damages arising out of any act within scope of employment was applicable to civil action arising out of alleged use of excessive force by correction officers in returning inmates to their cells during a disturbance, notwithstanding claim that officers acted beyond scope of their employment, where force resorted to was occasioned by violent acts of inmates themselves and was in accordance with normal and regular duty of officers in returning inmates to their cells when confronted with violent refusals to comply. Affirmed. Cepeda v. Coughlin, Reprinted with permission from 513 N.Y.S.2d 528 (App. Div. 1987), Copyright © 1987 West Publishing Co.

Visitation Privileges of Inmate with AIDS. Inmate, who was diagnosed as having Acquired Immune Deficiency Syndrome, and his wife brought action seeking judgment directing that they be allowed to participate in family reunion program at correctional facility which provides for conjugal visitation in private trailer. The Supreme Court, Special Term,... dismissed petition and inmate and wife appealed. The Supreme Court, Appellate Division, held that: (1) policy of not allowing inmates with AIDS to participate in program was rational, and (2) federal Rehabilitation Act which prohibits discrimination against otherwise qualified handicapped individuals does not apply where correctional facility used no federal funds to support program. Affirmed. Doe v. Coughlin, Reprinted with permission from 509 N.Y.S.2d 209 (App. Div. 1986), Copyright © 1987 West Publishing Co. [41,676].

Request to Use Device to Overcome Handicap Limitation. Handicapped correctional facility inmate brought Article 78 proceeding requesting permission to purchase and use listening and recording device for purpose of corresponding with his family and attorney. The Supreme Court... dismissed the petition, and inmate appealed. The Supreme Court, Appellate Division, held that dismissal of petition was not abuse of discretion in that possession or use of recording devices by inmates was prohibited as security measure. Affirmed. Rosario v. Scully, Reprinted with permission from 515 N.Y.S.2d 296 (App. Div. 1987), Copyright © 1987 West Publishing Co.

Transfer. Proceeding was instituted to prohibit petitioner's transfer from Rockland County jail to Erie County holding center. The Supreme Court... granted petition, and jail officials appealed. The Supreme Court, Appellate Divi-, sion, held that transfer of petitioner, who suffered from hypertension, from Rockland County jail to Erie County holding center, due to overcrowded conditions, was in accordance with

provisions of Correction Law, was rationally based upon such factors as petitioner's release date and lack of disciplinary problems, and thus was not an arbitrary and capricious act on part of jail officials. Judgment reversed, and proceeding dismissed. Rose v. Goldrick, Reprinted with permission from 515 N.Y.S.2d 505 (App. Div. 1987), Copyright © 1987 West Publishing Co.

PUBLIC UTILITIES/ENERGY

Low-Income Home Energy Assistance Program. Applicants brought action against county social services department, its director, and members of board of directors for denial of benefits under crisis intervention program that was part of North Carolina's low-income home energy assistance program. The United States District Court... granted summary judgment in favor of department, director, and members. Applicants appealed. The Court of Appeals... held that: (1) applicants were required to exhaust administrative remedies by using statutorily provided opportunity for fair administrative hearing for individuals whose claims for assistance were denied or were not acted upon with reasonable promptness, and (2) statute, which requires each state to provide assurances in connection with low-income home energy assistance program, and statute, which requires states to reserve reasonable amount for energy crisis intervention from funds allocated, did not create enforceable rights for applicants, who were denied benefits, and, therefore, created no enforceable rights within meaning of statute prohibiting deprivation of federal statutory rights under color of state law. Modified and affirmed. Hunt v. Robeson County Dep't of Social Servs., Reprinted with permission from 816 F.2d 150 (4th Cir. 1987), Copyright © 1987 West Publishing Co.

Establishing Telephone Utility Rates. Utility customer brought Article 78 proceeding seeking to require state Public Service Commission to abandon its policy of permitting public utilities to include charitable contributions as authorized expenditures in establishing utility rates and seeking to amend PSC's rate order for telephone utility to eliminate authorization of such practice. The Supreme Court, Special Term... denied motion to dismiss, and PSC and utilities appealed. The Supreme Court, Appellate Division ... affirmed, but granted permission to appeal and certified question. The Court of Appeals ... held that: (1) acts of PSC in setting rates which compelled utility customer to pay for charitable contributions made by utility constituted governmental conduct giving rise to cognizable claim by customer that his rights under First Amendment had been violated, and (2) fact that customer's proportionate share of objected to charitable contributions was small was irrelevant to determining cognizability of his claim. Affirmed. Cahill v. Public Serv. Comm'n,

Reprinted with permission from 513 N.Y.S.2d 656 (1986), Copyright © 1987 West Publishing Co.

Refund of Excessive Fuel Adjustment Charges. Hearings were held before Public Service Commission to determine whether power company had been imprudent in certain past decisions and practices and whether costs of improvements were passed on to consumers through rate adjustments under fuel adjustment clauses. The Commission found that power company had acted imprudently in certain circumstances and ordered it to refund excessive fuel adjustment charges. Power company petitioned for review. The Supreme Court... transferred case. The Supreme Court, Appellate Division . . . an nulled Commission's order for refund and remitted matter. Permission to appeal was granted. The Court of Appeals... held that: (1) Commission had implied power to order refund of rates that were incurred pursuant to fuel adjustment clause and that were imprudently incurred; (2) statutes authorizing Commission to order refund of money incurred in various situations did not prohibit Commission from ordering refund of automatically recovered fuel expenses that were not subjected to Commission review for reasonableness in regular rate proceeding; and (3) Commission was not required to invoke temporary rate procedure in order to order refund of excessive fuel expenses. Reversed. Niagara Mohawk Power Corp. v. New York Public Serv. Comm'n, Reprinted with permission from 507 N.E.2d 287 (N.Y. 1987), Copyright © 1987 West Publishing Co.

Delegating Authority to Review Utility Rates. City sought declaration that legislature's attempted delegation of authority to review rates of municipally owned utilities to the Public Utilities Commission was unconstitutional due to absence of legislatively established standards. The... District Court... rendered declaratory judgment in favor of city, and Commission and ratepayers appealed. The Court of Appeals... held that:

(1) court had jurisdiction to issue declaratory judgment under Administrative Procedure and Texas Register Act or Uniform Declaratory Judgment Act, and suit was not barred by sovereign immunity; (2) statute authorized appeals by nonresident ratepayers of municipally owned utility, and standards which governed review were set forth in separate sections of Public Utilities Regulatory Act so delegation was not unconstitutional; (3) for purposes of those appeals, "utility" and "public utility" encompassed municipally owned utilities; and (4) scope of Commission's review in nonresident ratepayer appeal was by trial de novo. Reversed and rendered. Public Util. Comm'n v. City of Austin, Reprinted with permission from 728 S.W.2d 907 (Tex. Ct. App. 1987), Copyright © 1987 West Publishing Co.

RURAL ISSUES

Farm Foreclosures. Farmers brought action against Federal Reserve Board, the Farm Credit Association, and agricultural lenders alleging defendants had violated various statutes and had implemented policies resulting in farm foreclosures. On motions to dismiss, the District Court... held that: (1) complaint constituted a generalized grievance better resolved in the legislative than the judicial arena; (2) use of state law to foreclose is not sufficient to allege a claim under civil rights statute; (3) the Farm Credit Act and statute declaring congressional policy of fostering and encouraging family farms do not create an implied cause of action; (4) there was no violation of the Securities Act in connection with issuance of Federal Land Bank Association stock; (5) claim that federal defendants manipulated interest rates fell within discretionary function exception to the Federal Tort Claims Act; (6) the Iowa Business Corporations Act did not require lenders, as foreign corporations, to obtain certificates of authority; and (7) alleged breach of fiduciary duty to farmers by lenders was compulsory counterclaim in state foreclosure actions, precluding bringing of later separate action for damages. Motions granted. Kolb v. Naylor, Reprinted with permission from 658 F. Supp. 520 (N.D.

Iowa 1987), Copyright © 1987 West Publishing Co.

SENIOR CITIZENS

Pension Funds. Class of beneficiaries to pension fund brought action against fund and its trustees alleging that trustees violated provisions of plan in lowering benefit levels after employer ceased participation in plan. On cross motions for summary judgment, the United States District Court... held that fund's trustees unreasonably interpreted provision of plan to permit trustees to reduce benefits, and plan and trustees appealed. The Court of Appeals...held that: (1) Court of Appeals will reverse decision of administrator of ERISA plan only if decision is arbitrary, capricious or made in bad faith, and (2) plain language of plan provision was ambiguous, and thus, trustees chose reasonable method to interpret ambiguity by permitting trustees to reduce benefits attributable to contribution rate increases in order to cure actuarial imbalance after employer withdrew from participation in fund. Reversed and remanded. McDaniel v. National Shopmen Pension Fund, Reprinted with permission from 817 F.2d 1370 (9th Cir. 1987), Copyright © 1987 West Publishing Co.

SOCIAL SECURITY/SSI

Disability Under Social Security Act. Social security disability claimant, who was French speaking Canadian citizen, sought review of final action by Secretary of [HHS] denying benefits to him under the Social Security Act. On claimant's motion to reverse and government's motion to affirm, the United States District Court... affirmed, and claimant appealed. The Court of Appeals... held that: (1) claimant's current application for benefits was not barred by res judicata due to his earlier claim; (2) failure of [ALJ] to adequately develop record required remand; (3) [ALJ] failed to give adequate weight to treating physicians' reports; and (4) on remand, the [ALJ] must consider fact that one characteristic of disabling mental illness is presence of occasional symptom free periods, and thus, basic pattern of alternating episodes of acute and less acute symptoms would not preclude finding of total disability. Vacated and remanded. Poulin v. Bowen, Reprinted with permission from 817 F.2d 865 (D.C. Cir. 1987), Copyright © 1987 West Publishing Co. [37,177].

Denial of Disability Benefits. Claimant appealed from order of the United States District Court ... which affirmed denial of disability benefits. The Court of Appeals... held that: (1) ALJ's determination of claimant's ability to occasionally carry ten pounds did not support finding that she could perform light work; (2) it was not error not to consider physician's report; and (3) grids could not be automatically applied to deny

disability in view of claimant's environmental restrictions due to breathing problems. Vacated and remanded. Wooldridge v. Bowen, Reprinted with permission from 816 F.2d 157 (4th Cir. 1987), Copyright © 1987 West Publishing Co.

Prisoner's Right to Benefits. Claimant sought judicial review of determination by Secretary of [HHS] denying disability benefits. The United States District Court... decided that termination of benefits for claimant's felony conviction did not violate prohibition against ex post facto laws. Claimant appealed. The Court of Appeals held that statute, which authorizes termination of benefits during any month of claimant's incarceration for felony, was not "ex post facto law" when applied to claimant who committed act resulting in felony conviction prior to effective date of statute. Affirmed. Caldwell v. Heckler, Reprinted with permission from 819 F.2d 133 (6th Cir. 1987), Copyright © 1987 West Publishing Co.

Retroactive Awards. Appeal was taken from order of the United States District Court...which limited retroactive award of social security disability benefits to one-year period. The Court of Appeals... held that: (1) statutory limit on retroactive benefits applies to one who does not file for benefits because of the disability, as in the case of mental incompetency, and (2) application of statute to one suffering mental disability does not violate due process or equal protection. Affirmed. Yeiter v. Secretary of HHS, Reprinted with permission from 818 F.2d 8 (6th Cir. 1987), Copyright © 1987 West Publishing Co.

Presumption of Continuing Disability. In social security disability cases, the United States District Court... held that the Secretary had failed to make findings necessary to overcome presumption of continuing disability. Thereafter, the Secretary filed motion for remand under rule relating to relief from judgment. Motion was denied, and the Secretary appealed. The Court of Appeals... held that the district court had no discretion to deny motion to remand "medical improvement" actions pursuant to the Social Security Disability Benefits Reform Act of 1984. Vacated and remanded with instructions. Walker v. Secretary of HHS, Reprinted with permission from 817 F.2d 26 (6th Cir. 1987), Copyright © 1987 West Publishing Co.

Definition of "Disability." Claimant sought disability benefits, which were granted by [ALJ]. Appeals Council reversed, and the United States District Court... affirmed. On appeal, the Court of Appeals... held that when claimant has been disabled for five consecutive months and suffers from an impairment which can be

expected to last for continuous period of 12 months, claimant is entitled to disability benefits and may engage in trial work period even after qualifying for such entitlement; under Social Security Act's definition of disability, claimant need not actually be impaired for 12 months to be entitled to benefits. Vacated and remanded.

McDonald v. Bowen, Reprinted with permission from 818 F.2d 559 (7th Cir. 1986), Copyright © 1987 West Publishing Co.

Substantial Gainful Activity. Social security disability claimant appealed from denial by Secretary of [HHS] of his application for establishment of period of disability and for disability benefits. The United States District Court... affirmed and claimant appealed. The Court of Appeals... held that: (1) in order for "previous work" which had been performed by claimant to be considered "past relevant work" in determining eligibility for benefits, such work must first rise to level of substantial gainful activity; (2) interpretative rulings by Secretary are binding upon [SSA] and are capable of being relied upon as precedent until they are either expressly superseded, modified, or revoked by later legislation, regulations, court decisions or rulings; and (3) [ALJ] and district court erred in denying claimant disability benefits at step four of sequential evaluation process on basis of finding that claimant could return to his past relevant work as loan processor, which had already been determined by [SSA] not to have constituted substantial gainful activity, and thus, remand was necessary for inquiry as to whether claimant retained ability to perform any other work within national economy. Reversed and remanded. Lauer v. Bowen, Reprinted with permission from 818 F.2d 636 (7th Cir. 1987), Copyright©1987 West Publishing Co.

Dependent Insurance Benefits. Dispute arose over child's entitlement to dependent insurance benefits. The United States District Court... upheld decision to deny benefits, and child appealed. The Court of Appeals held that receipt by child of three dollars per day from county department of public welfare, whether or not substantial, was a "regular contribution" disqualifying child from receiving insurance benefits available to dependent minor children. Affirmed. Pulley ex rel. Pulley v. Bowen, Reprinted with permission from 817 F.2d 453 (7th Cir. 1987), Copyright © 1987 West Publishing Co.

Children's Benefits. Claimants appealed from a decision of the Secretary of [HHS] denying their application for children's benefits. The United States District Court... upheld the decision, and claimants again appealed. The Court of Appeals... held that statutory condition of eligibility for children's benefits that a court

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.

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 (11th Cir. 1987), Copyright © 1987 West Publishing Co.

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.

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.

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 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

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.

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).

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

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

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).

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].