cess of law. Since plaintiffs in this suit do not contend that their claims are substantially different from those appealed in Childress, the court ruled that it would be in the best interests of all parties involved to stay both the procedural and substantive aspects of this case until the Tenth Circuit decides Childress.

Agency's Failure to Implement State Law Providing for Extra Nonrecoupable Grants to Pay Utility Arrears Challenged

42,198. Johnson v. Grinker, No. 87 Civ 0884 (S.D.N.Y. filed Feb. 10, 1987). Plaintiffs represented by Michael Hampden, Bronx Legal Services, 2605 Grand Concourse, Bronx, NY 10468, (212) 220-0030. [Here reported: (Accession No. 1009823) 42,198A Complaint (34pp.).]

In this class action, plaintiff public assistance recipients challenge the constitutionality of the New York City Department of Social Services' (DSS's) systematic failure to implement state law providing for extra (nonrecoupable) grants to recipients for payment of utility arrears. Plaintiffs allege that they requested that DSS pay for utility arrears to prevent a shut-off of their gas and electric service. Although the department paid these arrears, the amounts advanced by DSS were later recouped from plaintiffs' public assistance grants. New York law requires that DSS pay a recipient's arrearages directly to a utility company if a recipient has insufficient funds to pay for services. This advancement of public funds is not subject to recoupment if the recipient has paid a utility an amount equal to or greater than that provided by the Home Energy Allowance (HEA) for domestic energy costs (lights, cooking, and hot water). Plaintiffs contend that, although their utility bills were often in excess of the HEA included in their grant, they were not advised that they were entitled to nonrecoupable grants. Therefore, they allege that defendant has violated the due process rights of DSS recipients by (1) failing to give them notice of the availability of an additional allowance for utility arrears and the manner in which they may qualify for receipt of the allowance; and (2) recouping the amount of utility arrears advanced without giving them notice of the grounds and circumstances that would justify the recoupments. Plaintiffs seek declaratory and injunctive relief from DSS's failure and refusal to implement the state statute and regulations. Counsel notes that settlement negotiations have been scheduled.

Class Certification Denied in Action Challenging Alaska's Denial of Benefits for Children Who Visit Absent Parents

41,769. Sorensen v. Munson, No. 3AN-86-14,231 CIV (Alaska Super. Ct. Jan. 9, 1987). Plaintiffs represented by Linda Beecher, James Bamberger, Alaska Legal Services, 550 W. 8th Ave., Anchorage, AK 99501, (907) 272-9431. [Here reported: (Accession No. 1009840) 41,769C Memo in Opp'n to Class Cert. (15pp.); 41,769D Plfs' Reply to Def's Opp'n to Class Cert. (25pp.); 41,769E Decision & Order on Reconsideration (2pp.). Previously reported as Sorensen v. Alaska Dep't of Health & Social Servs. at 20 CLEARINGHOUSE Rev. 1342 (Feb. 1987).]

Support Assistance Programs Adopted in Four Texas Counties

In response to grievance petitions filed in nine counties by Texas Rural Legal Aid on behalf of the International Union of Agricultural and Industrial Workers, four of those counties have formally adopted support assistance programs. Petitioners argued that every Texas county has an affirmative duty under Texas law to support its resident paupers who are unable to support themselves, and that such aid must be extended to farmworkers. The Commissioner's Courts in Deaf Smith, Gaines, Floyd, and Yoakum counties have formally adopted plans to provide assistance to those in need. Further, counsel notes that Parmer, Bailey, Hale, and Pecos counties are in the process of adopting programs.

Copies of the petition filed in Deaf Smith County and of the plans adopted by the courts in Deaf Smith, Gaines, Floyd, and Yoakum counties are available as Clearinghouse No. 42,196, Public Assistance Policies of Four Texas Counties.

The court has denied class certification in this action challenging the Alaska Department of Health and Social Services' (DHSS's) policy of denying AFDC and Medicaid for children who have recurrent visitation with an absent parent. The department's policy is based on the theory that such children are not deprived of parental care. Plaintiffs sought certification of a class including all persons whose AFDC or Medicaid benefits have been or will be denied, terminated, or reduced on the basis of this recurrent visitation policy. In denying the motion, the court held that class members are not readily identifiable, since DHSS does not always state the precise reason for a denial of benefits in its decisions. The court noted that, to determine membership in the class, a full adjudication of the rationale for denial would be required in each case. Further, the court found that most of plaintiffs' objectives can be accomplished without resort to a class action and that they are protected against the potential for multiple lawsuits by stare decisis and collateral estoppel.

California County Attempts to Restrict the Use of Local Funds to Pay Its Share of Welfare Programs

42,174. McMahon v. Dolan, No. 93315 (Cal. Super. Ct., Butte County, filed Jan. 26, 1987). Intervenors represented by Alan Lieberman, Lucy Quacinella, Michael Bush, Andrew Holcombe, Barrie Roberts, Legal Services of Northern California, 541 Normal Ave., Chico, CA 95927, (916) 345-9491; Daniel Siegel, Melinda Bird. [Here reported: (Accession No. 1009797) 42,174A Complaint in Intervention (12pp.); 42,174B Memo of Points & Auth. in Opp'n to Application for Prelim. Inj. & Peremptory Writ of Mandate (19pp.); 42,174C Intervenors'

Points & Auth. in Support of Plf's Motion for Prelim. Inj. (34pp.); 42,174D Reply to Respondents' Memo of Points & Auth. (3pp.).]

42,175. Board of Supervisors v. McMahon, No. 93317 (Cal. Super. Ct., Butte County, filed Jan. 21, 1987). Intervenors represented by Alan Lieberman, Lucy Quacinella, Legal Services of Northern California, 541 Normal Ave., Chico, CA 95927, (916) 345-9491. [Here reported: (Accession No. 1009796) 42,175A Opp'n to Motion for Prelim. Inj. (15pp.); 42,175B Intervenors' Declarations in Support of Defs' Motion for Prelim. Inj. & in Opp'n to Plf's Motion for Prelim. Inj., Request for Judicial Notice (9pp.).]

In two related actions involving who has the duty to pay the county's share of AFDC grants, the Board of Supervisors of Butte County, California, and the Director of the California Department of Social Services (DSS) have sued each other, each seeking preliminary injunctive relief in their respective actions. In both actions, the court has granted an application to intervene that was filed by two taxpayers who receive AFDC or GA benefits. The controversy centers around the validity of Measure E, which was approved by a majority of the electors of Butte County in November 1986. Measure E amends the county charter by prohibiting the county from using local funds for welfare programs in excess of the maximum amount of welfare funds utilized in FY 1978-79.

In McMahon v. Dolan, the Director of DSS seeks a determination of the validity of Measure E as to the county's participation in public social services programs supervised by DSS. DSS argues that Measure E is void because it conflicts with and is preempted by state law. It claims that state law expressly imposes the duty on the county to contribute to the costs of AFDC and In-Home Support Services (IHSS) and that Measure E does not supersede the legislature's dictates. DSS requests the court to issue a preliminary injunction requiring the county to continue to contribute the county's share of the costs of AFDC and IHSS.

In Board of Supervisors v. McMahon, the county also seeks a determination of the validity of Measure E and threatens to withhold its regularly scheduled payments to recipients of AFDC. The county argues that Measure E is an authorized exercise in a purely local budgetary matter and that it is not preempted by state legislation. Further, the county requests that the court issue a preliminary injunction ordering the state to provide the additional funds necessary to make the full AFDC grant payments to recipients in Butte County.

Intervenors in both cases argue that the county designed Measure E as a means to avoid using local funds in countyadministered welfare programs. They note that, in FY 1978-79, the year used as the standard for comparison in Measure E, the state paid virtually the county's entire share of the AFDC costs, and that use of that year constitutes an attempt to mislead the citizens of Butte County and to blame the needy for the county's fiscal problems. Intervenors contend that the county's actions violate state law and the California Constitution, and they seek declaratory and injunctive relief preventing the county from implementing Measure E and from terminating or reducing AFDC, IHSS, or GA benefits.

Assignment of Child Support Rights to Welfare Agency Held Void Because Child Is Not Otherwise Eligible for AFDC

42,243. New Mexico ex rel. Human Servs. Dep't v. Cordoba, No. DR-85-00389 (N.M. Dist. Ct., Bernalillo County, Nov. 6, 1986). Respondent pro se Armando Cordoba, 11000 Love Ave., NE, Albuquerque, NM 87112, (505) 299-4739. [Here reported: (Accession No. 1009828) 42,243A Motion for Modification of Respondent's Child Support Obligation (2pp.); 42,243B Respondent's Proposed Findings of Fact & Conclusions of Law (8pp.); 42,243C Order (2pp.).]

The court has held void an assignment of child support rights to the state welfare agency for a child whose parents have joint custody of him and whose absent parent has daily contact with him and provides him parental support. Respondent proceeded pro se to challenge the New Mexico Human Services Department's (HSD's) requirement that his son, who lives part-time with the son's mother and a half-sibling, be included in the mother's AFDC filing unit, and that respondent's child support be assigned to HSD. Despite the fact that respondent's son is not otherwise eligible for AFDC because respondent regularly visits with his son and provides support for him, HSD required the assignment of child support rights and filed a petition alleging nonsupport against respondent. Respondent agreed to a stipulated order providing that his child support payments be made directly to HSD. He then asked the court to modify this order, arguing that HSD has no authority to maintain a support action on behalf of a child who is not otherwise eligible for financial assistance. The court has found that the child is not deprived of parental care or support from respondent and is not independently eligible for AFDC. Thus the court concluded that the assignment of child support rights to HSD is void. Respondent notes that the court also approved a stipulated order deleting the child from the AFDC grant.

18-Year-Old Parents Seek Injunction Requiring North Carolina to Implement 1986 Amendment to Grandparent Deeming Rule

42,165. Cash v. Kirk, No. 87 CvS 1734 (N.C. Super. Ct., Mecklenburg County, filed Feb. 11, 1987). Plaintiffs represented by Douglas Sea, William Rowe, Legal Services of Southern Piedmont, 951 S. Independence Blvd., Charlotte, NC 28202, (704) 376-1608. [Here reported: (Accession No. 1009804) 42,165A Complaint & Motion for Prelim. Inj. (10pp.).]

Plaintiffs, indigent pregnant women and mothers with children, have filed a class action complaint and motion for preliminary injunction challenging the failure of the State of North Carolina to implement the 1986 amendment to the AFDC statute, 42 U.S.C. § 602(a)(39). This amendment eliminated application of the grandparent deeming rule to 18-year-old parents and pregnant women. Named plaintiffs are two unemployed teenage mothers and a pregnant teenager who live with their mothers and have no income other than AFDC. They bring this action on behalf of all residents of North Carolina who are or will be 18 years of age and for whom AFDC benefits have been denied, reduced, or terminated because of deemed income from their parents. Plaintiffs contend that

defendant officials of the North Carolina Department of Human Resources' policy of denying AFDC eligibility to 18-year-old parents and their needy children based on the income of the grandparents of the dependent children violates section 402(a)(39) of the Social Security Act, the supremacy clause of the United States Constitution, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. They contend that the state's continuing illegal policy is causing irreparable harm by depriving them and their children of AFDC and Medicaid benefits necessary to obtain food, shelter, medical care, and necessities of life. Plaintiffs argue that, despite Congress's amendment of section 602(a)(39)

in 1986 to clarify that "minor parents" does not include 18-year-olds for purposes of grandparent deeming, defendants have refused to implement the amendment. The state, apparently on instructions from HHS, contends that it cannot implement the amendment until regulations are promulgated by HHS. Plaintiffs contend the amendments are self-effectuating. Plaintiffs seek declaratory, injunctive, and notice relief, as well as retroactive AFDC benefits for class members who would have been eligible for such benefits but for the illegal application of the grandparent deeming provision.

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ATTORNEYS/LEGAL SERVICES

Personal Compensation for Legal Services Attorney. In class action brought under the Voting Rights Act, the United States District Court... awarded most of attorney fees to legal service corporation's former staff attorney, personally. On appeal, the Court of Appeals... held that: (1) representation of both eligible and ineligible plaintiffs was not "uncompensated" within meaning of regulation authorizing staff attorneys for legal service corporations to perform certain uncompensated work, and thus, any agreement between attorney and legal service corporation authorizing attorney to work on case "outside practice" was invalid, and (2) attorney was not personally entitled to any fee for work performed while employed by corporation, and legal service corporation was entitled to entire award except for portion for services performed by staff attorney after he left position with corporation. Reversed and remanded. Jordan v. City of Greenwood, Reprinted with permission from 808 F.2d 1114 (5th Cir. 1987), Copyright © 1987 West Publishing Co.

Attorney Fees Under Fair Labor Standards Act. Migrant and seasonal farm workers brought action under Fair Labor Standards Act, Farm Labor Contractor Registration Act, and state contract law against packing shed and various individuals. Following settlement on all claims except claim for attorneys' fees, the United States District Court...awarded plaintiffs $24,418 in attorneys' fees, and both sides appealed. The Court of Appeals... held that: (1) under Texas law, plaintiffs were not entitled to award of attorneys' fees as prevailing parties on their Farm Labor Contractor Registration Act claim, and (2) plaintiffs were entitled to recover attorneys' fees on their Fair Labor Standards Act claim. Reversed and remanded. Diaz v. Robert Ruiz, Inc., Reprinted with permission from 808 F.2d 427 (5th Cir. 1987), Copyright © 1987 West Publishing Co.

Civil Rights Attorney's Fees Awards Act. Plaintiff who prevailed in challenge to constitutionality of procedures used by Alabama Department of Mental Health to reconfine individuals who had been conditionally released from state mental hospitals after initial civil involuntary commitments brought motion for attorney's fees. The District Court... held that prevailing plaintiff in action challenging constitutionality of procedures used by Alabama Department of Mental Health to reconfine individuals who had been conditionally released from state mental hospitals after initial civil involuntary commitment was entitled to recover attorney's fees in the amount of $60,994.20 and expenses in amount of $3,285.09 under Civil Rights Attorney's Fees Awards Act. Motion for attorney's fees and expenses granted. Birl v. Wallis, Reprinted with permission from 649 F. Supp. 868 (M.D. Ala. 1986), Copyright © 1987 West Publishing Co. [38,770].

Unreasonable Request for Fees. Attorney moved for award of attorney fees in excess of $19,000 for representation of social security claimant. The District Court... held that: (1) attorney, who claimed unreasonable amounts of time, was entitled to award of only $3,750 for work done at $75 per hour; (2) application for award of attorney fees under Equal Access to Justice Act, which had been filed more than 30 days after judgment became final, was untimely and could not [be] considered by district court; and (3) district court filing fee and payments to physicians for medical reports were not recoverable under Social Security Act by claimant's attorney. Motion denied. Gidcumb v. Secretary of HHS, Reprinted with permission from 650 F. Supp. 96 (W.D. Ky. 1986), Copyright © 1987 West Publishing Co.

Timeliness of EAJA Fees Motion. Claimant's attorney filed motion for attorney fees under Equal Access to Justice Act. The District Court... held that stipulation between claimant

and Secretary to remand disability claim to Secretary for further review did not constitute "final judgment" so as to commence running of 30-day period, during which application for attorney fees under Equal Access to Justice Act had to be filed, since claimant, at time of remand, did not know whether he would become prevailing party, no order of dismissal had been entered, and order of dismissal, even after its entry, would still have been appealable. Motion held in abeyance. La Manna v. Secretary of HHS, Reprinted with permission from 651 F. Supp. 373 (N.D.N.Y. 1987), Copyright 1987 West Publishing Co.

BANKRUPTCY

Reinstatement by Bankruptcy Court. Bankruptcy court "reinstated" creditor's previously dismissed state court action against debtor, and debtor appealed. The United States District Court... dismissed appeal and remanded litigation to state court, and debtor again appealed. The Court of Appeals... held that: (1) district court order dismissing appeal of bankruptcy court order "reinstating" case was reviewable; (2) state court had no authority to enter order of voluntary nonsuit after case had been removed to bankruptcy court; (3) Court of Appeals had no jurisdiction to review district court order abstaining in matter and remanding case to state court; and (4) district court could remand case to state court, even though case had been removed to bankruptcy court. Reversed in part, vacated in part, and dismissed in part. Adams ex rel. Butcher v. Sidney Schafer & Assocs. (In re Adams), Reprinted with permission from 809 F.2d 1187 (5th Cir. 1987), Copyright 1987 West Publishing Co.

Farmer's Exemption from Involuntary Bankruptcy. Judgment creditors filed petition for bankruptcy against judgment debtor. The Bankruptcy Court denied debtor's claim of farmer's

exemption from involuntary bankruptcy. The United States District Court... upheld that determination, and debtor appealed. The Court of Appeals... held that: (1) for purposes of determining whether debtor was "farmer" exempt from involuntary bankruptcy, term "gross income" was to be given same meaning that it had in federal income tax law; (2) money received by debtor as distribution from individual retirement account to which in previous years he had made contributions from farming income was not itself "farming income''; and (3) IRA distributions were includable in "gross income" to determine whether debtor was entitled to farmer's exemption. Affirmed. Wagner, In re, Reprinted with permission from 808 F.2d 542 (7th Cir. 1986), Copyright © 1987 West Publishing Co.

Appeals Council Review. Claimant appealed from decision of the Secretary of [HHS] denying claimant's [SSI] benefits. The United States District Court... reversed, and the Secretary of [HHS] appealed. The Court of Appeals... held that [ALJ's] decision, after remand from federal district court and Appeals Council, that claimant was disabled, was a "recommended decision" that Appeals Council was not bound to review within 60-day period. Vacated and remanded. Scott v. Bowen, Reprinted with permission from 808 F.2d 1428 (11th Cir. 1987), Copyright©1987 West Publishing Co.

Citizens' Initiative Process. Right to overnight shelter initiative was submitted to Board of Elections and Ethics on behalf of overnight shelter committee and initiative was placed on ballot. The District of Columbia sued Board, seeking declaratory judgment that shelter initiative violated "laws appropriating funds" exception to citizens' right to make laws through initiative process. The District moved for summary judgment and committee filed cross motion for summary judgment. The Superior Court... entered summary judgment for District, and Board and committee appealed. The Court of Appeals... held that: (1) shelter initiative did not strip elected officials of discretion to make adjustments in funding of various projects; (2) shelter initiative did not impermissibly launch appropriations process; and (3) fact that initiative could be loosely denominated entitlement program and contained provision for judicial review did not render initiative violative of "laws appropriating funds" exception. Reversed. District of Columbia Bd. of Elections & Ethics v. District of Columbia, Reprinted with permission from 520 A.2d 671 (D.C. 1986), Copyright©1987 West Publishing Co. [40,944].

CIVIL PROCEDURE/

ADMINISTRATIVE LAW

Article III Standing. Nonprofit membership corporation organized to assist Haitian refugees and two members brought action challenging program to interdict undocumented aliens on high seas. The United States District Court... dismissed complaint. Appeal was taken. The Court of Appeals... held that: (1) members, who alleged interference with associational rights, but who failed to state First Amendment claim, failed to allege injury and, therefore, lacked Article III standing, and (2) interests asserted by corporation and members were not within zone of interest intended to be protected by laws forming basis for challenge, and, thus, corporation and members lacked prudential standing. Affirmed. Haitian Refugee Center v. Gracey, Reprinted with permission from 809 F.2d 794 (D.C. Cir. 1987), Copyright © 1987 West Publishing Co.

Privacy Act. Appeal was taken from order of the United States District Court... which refused to issue discovery order. The Court of Appeals... held that: (1) Privacy Act does not create qualified discovery privilege requiring party to show actual need as prerequisite to invoking discovery; (2) relevance standard of the federal rules is applicable to request for material governed by the Act; and (3) notice to affected parties is not required, but may be given by court. Vacated and remanded. Laxalt v. McClatchy, Reprinted with permission from 809 F.2d 885 (D.C. Cir. 1987), Copyright © 1987 West Publishing Co.

Improper Appeal. Order was entered, requiring Secretary of [HHS] to adopt plan for mandatory periodic accounting by representative Social Security payees, in the United States District Court... and Secretary appealed. The Court of Appeals... held that: (1) Secretary had abandoned challenge to order from which appeal was tak

CIVIL RIGHTS

Criminal Defendant's Waiver of Right to File Section 1983 Action. The United States Supreme Court has held that a court may enforce an agreement in which a criminal defendant releases his right to file a section 1983 action in return for a prosecutor's dismissal of pending criminal charges. Respondent was arrested and accused of tampering with a witness. Respondent later signed a "release-dismissal agreement," under which the charges against him were dismissed and he released any claims he might have against the town for any harm caused by his arrest. Ten months later, respondent filed suit against the town in federal court under 42 U.S.C. § 1983 for violations of his constitutional rights caused by his arrest. The district court dismissed the suit on the basis of the releasedismissal agreement. The First Circuit reversed, adopting a per se rule invalidating such agreements. The Supreme Court has reversed, finding that, because respondent voluntarily waived his right to sue under section 1983, the public interest opposing involuntary waiver of constitutional rights is no reason to hold the agreement invalid. Further, the Court found that the possibility of coercion in the making of releasedismissal agreements is insufficient by itself to justify a per se rule against such agreements. The court reasoned that the mere opportunity to act improperly does not compel an assumption that release-dismissal agreements stem from improper prosecutorial actions. The Court noted that such agreements may further legitimate prosecutorial and public interests. Thus the Court concluded that the agreement in this case was voluntary, that there is no evidence of prosecutorial misconduct, and that enforcement of the agreement would not adversely affect relevant public interests. Town of Newton v. Rumery, 55 U.S.L.W. 4304 (U.S. Mar. 9, 1987).

CONSUMER

Alienage Discrimination. Alien brought action against bank arising from bank's declining to issue him credit card, asserting civil rights violations and violations of the Equal Credit Opportunity Act. The United States District Court

determined that alien had no civil rights claim, that Act did not give alien legal remedy for private alienage discrimination, but that bank had violated Act by not telling alien all its reasons for denying him credit, and alien appealed. The Court of Appeals... held that: (1) civil rights statute guaranteeing equal rights under law provided legal remedy for private alienage discrimination; (2) Act did not prohibit alienage discrimination; (3) alien failed to demonstrate he was discriminated against on the basis of his national origin in violation of Act; and (4) there was no showing of wanton or reckless behavior on part of bank that would justify award of punitive damages under Act. Affirmed in part, reversed in part, and remanded. Bhandari v. First Nat'l Bank of Commerce, Reprinted with permission from 808 F.2d 1082 (5th Cir. 1987), Copyright © 1987 West Publishing Co.

Odometer Disclosure Requirements. Automobile buyer brought action against automobile credit corporation alleging violations of odometer disclosure requirements of Motor Vehicle Information and Cost Savings Act and Missouri Odometer Law. Credit corporation moved for summary judgment. The District Court... held that, although summary judgment was rarely