have not responded to other types of treatment or medication, and they seek to undergo ECT. Plaintiffs contend that the present California law and regulations affecting ECT treatment unduly limit and effectively prohibit patients from receiving, and licensed physicians from administering, accepted and appropriate forms of treatment for severe and often incapacitating mental illness or conditions. Plaintiffs further contend that the statute interferes with patients and doctors in reaching treatment decisions free from unwarranted governmental intrusion. Finally, plaintiffs contend that the statute, as applied to mental patients, violates their first, fourth, fifth, eighth, ninth, and fourteenth amendment rights under the United States Constitution, and article I, sections 1, 2, and 7 of the California Constitution. They seek declaratory and injunctive relief, as well as damages.

NATIVE AMERICANS

Relocated Navajo Indians Seek Damages for Breach of Duty of Trust Owed to Them by Federal Government

42,501. Hosteen v. United States, No. 805-86L (Cl. Ct. filed May 28, 1987). Plaintiffs represented by Arthur Davich, Community Legal Services, 1337 N. First St., Phoenix, AZ 85004, (602) 256-2000. [Here reported: (Accession No. 1010014) 42,501A Complaint (5pp.); 42,501B Memo of Points & Auth. in Support of Class Cert. (36pp.); 42,501C Plfs' Reply in Support of Class Cert. (53pp.); 42,501D Plfs' Response in Opp'n to Motion to Dismiss (85pp.).]

Plaintiffs in this class action are Navajo Indians who were relocated from the reservation and who now seek damages allegedly arising from the federal government's relocation program. Plaintiffs include persons who previously lived in remote and isolated areas on the Navajo reservation, who had little education or contact with the world, and who were relocated in cities and urban societies by the Navajo-Hopi Indian Relocation Commission (NHIRC). Plaintiffs have since lost their governmentprovided homes. Plaintiffs complain that they are unable to communicate effectively in the English language and are unsophisticated people whose principle means of livelihood was previously unconnected in any way with modern urban society. Further, plaintiffs complain that, by reason of their inexperience with modern society and their naïvete, together with their profoundly disabling cultural differences, they have been victimized by organized financial and real estate schemes and artifices, by which they were defrauded and have either lost their homes by foreclosure or by fraudulent inducement to sell for inadequate consideration. Plaintiffs also argue that they have suffered from their inability to adjust to a foreign, urban lifestyle and economy and, as a result, have suffered a higher incidence of illness, mental illness, and alcoholism. Plaintiffs claim that NHIRC's actions constitute a breach of the duty of trust as well as the statutory duties owed them by the federal government. Defendant seeks dismissal, arguing that plaintiffs have failed to state a claim that can be interpreted as mandating compensation by the

federal government for damages, and that no cause of action exists for breach of the government's trust duty. Plaintiffs argue in response that the applicable statutory authorities comprise a clear mandate for compensation to plaintiffs for the breach of duty by the government, and that the common law of trusts mandates an award of damages for the United States' violation or illegal termination of its trust obligations.

PRISONS

Prison Project Appeals Dismissal of Action Challenging Withholding of AIDS Information Under Freedom of Information Act

42,502. Lewisburg Prison Project, Inc. v. Federal Bureau of Prisons, No. 87-5102 (3d Cir. filed May 4, 1987). PlaintiffAppellant represented by Robert Hauhart, Prisoners' Legal Services of New York, 22 Broad St., Plattsburgh, NY 12901, (518) 563-7300. [Here reported: (Accession No. 1010017) 42,502A Complaint (15pp.); 42,502B Brief in Support of Plf's Motion for Vaughn Index (14pp.); 42,502C Response & Brief in Opp'n to Motion for a Vaughn Index (9pp.); 42,502D Plf's Brief in Support of Its Motion for Summary Judgment (34pp.); 42,502E Brief & Documents in Support of Def's Motion to Dismiss or Summary Judgment Because of Mootness or, in the Alternative, for a Change of Venue (49pp.); 42,502F Plf's Reply Brief in Support of Motion for a Vaughn Index (13pp.); 42,502G Plf's Brief in Opp'n to Motion to Dismiss or Change Venue (20pp.); 42,502H Order (5pp.); 42,502-1 Order (7pp.); 42,502J Appellant's Brief (55pp.); 42,502K Appellees' Brief (48pp.); 42,502L Appellant's Reply Brief (22pp.).]

Plaintiff, a legal services organization serving prisoners held in the maximum security penitentiary at Lewisburg, Pennsylvania, has appealed to the Third Circuit the district court's decision granting the defendant Federal Bureau of Prisons' motion to dismiss in this action challenging the Bureau's withholding of information regarding AIDS in the federal prison population. Plaintiff seeks the information under the Freedom of Information Act (FOIA). After plaintiff's repeated requests, defendant released three documents containing inadequate information, and withheld further information claiming exemption under the FOIA. Plaintiff appealed the denial of this information to the agency's FOIA officer, who had signed the original release and withholding determination letter. When further release of materials or written reply to plaintiff's two appeal letters were not forthcoming, plaintiff filed suit under the FOIA. The district court refused to grant plaintiff leave to seek discovery, denied its motion for a Vaughn index (defendants arguing exemptions under FOIA are required to justify their position and then index the information upon appropriate motion and as mandated by the guidelines of the court), and granted defendant's motion to dismiss on the grounds that there had been no agency "withholding" under the terms of the FOIA and that plaintiff had failed to exhaust fully its administrative remedies under 28 C.FR. § 16.8 by appealing to the the Department of Justice's FOIA appeals unit. On appeal, plaintiff contends that the district court erred by (1) shifting the burden of disclosure under the FOIA to plaintiff rather than to defen

dant as required by the FOIA; (2) refusing plaintiff the opportunity to pursue discovery and contest justifications set forth by defendant; (3) finding that plaintiff failed to exhaust its administrative remedies under the FOIA, because defendant failed to comply with its provisions in addressing and responding to plaintiff's requests; and (4) determining that there had been no "withholding" by defendant. Plaintiff further alleges that the district court's ruling that it had not "substantially prevailed" was contrary to the facts and/or based upon an inadequate record created by the court's abuse of discretion in conducting proceedings.

Corrections Facility Ordered to Expunge Records of Inmates Charged with Violations of Disciplinary Rules

42,515. Garrett v. Coughlin, No. 53863 (N. Y. Sup. Ct., App. Div., May 28, 1987). Appellees represented by Robert Hauhart, David Leven, Prisoners' Legal Services of New York, 22 Broad St., Plattsburgh, NY 12901, (518) 563-7300. [Here reported: (Accession No. 1010044) 42,515A Decision (8pp.); 42,515B Appellants' Brief (16pp.); 42,515C Appellees' Brief (24pp.); 42,515D Record on Appeal (99pp.); 42,515E Opinion (4pp.).]

The court has ordered the Department of Corrections to expunge from the institutional disciplinary records of two inmates entries regarding alleged violations of the prison's disciplinary rules, because these charges were subsequently dismissed by a hearing officer. Petitioners sought to have the notations and references to the disciplinary charges expunged from their records, but the Department refused to do so. Petitioners appealed, contending that respondent's refusal to expunge their records was arbitrary and capricious and an abuse of discretion. The trial court ruled in petitioners' favor, and the Department appealed, arguing that it is under a statutory obligation to record the "continuous case histories" of each prisoner to "assure the complete study of the background and condition of each inmate," and that this duty, coupled with the absence of any corresponding requirement to delete entries made on prisoners' records, renders those entries irremovable. In affirming the lower court's decision, the appellate court held that (1) petitioners' suit was in the nature of a mandamus to review, not a mandamus to compel, and therefore the court was empowered to fashion a proper remedy; (2) New York State courts have sanctioned expungement as an appropriate remedy if charges are improperly brought against an inmate, if information in a prisoner's file is concededly without basis in fact or if an inmate has been improperly convicted of a disciplinary charge; and (3) the trial court correctly found that the Department's actions were arbitrary, capricious, and an abuse of discretion. In so ruling, the court stated that allowing references to charges that have been dismissed to remain in institutional records leaves inmates in jeopardy of having those references improperly used against them by parole boards and time allowance committees.

PUBLIC UTILITIES/ENERGY

Resident Challenges City's Termination of Electrical and Water Services Without Prior Notice or Hearing

42,528. Luna v. City of Georgetown, No. A-87-CA-263 (W.D. Tex. filed June 8, 1987). Plaintiff represented by Fred Fuchs, Lora Livingston, Legal Aid Society of Central Texas, 611 E. 6th St., Austin, TX 78701, (512) 476-7244. [Here reported: (Accession No. 1010057) 42,528A Complaint (17pp.); 42,528B Brief in Support of Motion to Dismiss (5pp.); 42,528C Plf's Reply Brief (10pp.).]

Plaintiff, a 65-year-old resident of defendant city, has filed a class action seeking declaratory and injunctive relief for electrical and water services disconnected absent prior notice or an opportunity to be heard. Plaintiff, who receives social security, SSI, and food stamp benefits monthly, had her utility services cut off due to a delinquent account. Defendant provided no notice prior to disconnection of the utilities, and the notice it left informing plaintiff that the utilities had been disconnected failed to provide plaintiff with an opportunity to contest any proposed utility cutoff or to inform her that she could request an informal hearing to discuss the proposed termination. Plaintiff argues that, in terminating her utility services, defendant deprived her of her property interest in continuous utility services without due process of law. Plaintiff further claims that, in terminating her utility services without providing notice of and an opportunity for a hearing, defendant violated her due process rights and the due course of law provision of the Texas Constitution. Plaintiff seeks a permanent injunction enjoining defendant from terminating electrical or water service without prior notice and opportunity for a meaningful hearing. Plaintiff seeks certification of a class action on behalf of all present and future utility customers of the city whose service will be subject to termination. Finally, plaintiff seeks nominal and actual damages, costs, and attorney fees.

SOCIAL SECURITY/SSI

Secretary Is Required to Do More Than Compare Medical Conditions to Listing of Impairments in Widow's Disability Case

42,485. Headlee v. Bowen, No. 85-F-1762 (D. Colo. Apr. 27, 1987). Plaintiff represented by Brian Lawlor, Colorado Rural Legal Services, 2801 E. Colfax Ave., Denver, CO 80206, (303) 393-0323. [Here reported: (Accession No. 1010006) 42,485A Opening Brief in Support of Award of Widow's Disability Benefits (22pp.); 42,485B Def's Answer Brief (10pp.); 42,485C Plf's Reply Brief (5pp.); 42,485D Opinion (9pp.).]

On appeal of the Appeals Council's denial of a claim for widow's disability benefits, the court reversed the Secretary's decision and has granted plaintiff's claim for benefits, holding that the Secretary is required to do more in a widow's disability case than compare the claimant's medical conditions to the listing of impairments. Claimant filed a claim for benefits under

42 U.S.C. §§ 402(d), 423(d)(2)(B), alleging that she had a combination of medical conditions, including a somatic disorder, chronic back pain, osteoarthritis, anxiety, and hypertension, which precluded her from performing any gainful activity. Reversing the Secretary's finding that plaintiff was not disabled, the court found that it was reversible error for the Secretary not to consider claimant's capacity to work, i.e. the ability to engage in any gainful activity, which goes to the statutory standard for determining a widow's disability. Under 42 U.S.C. § 423(d)(2)(B) and 20 C.FR. § 404.1545(a), the Secretary must evaluate the disabled widow's residual functional capacity, which is a medical assessment. Noting that the Secretary's nonexamining medical advisor concluded that claimant “would have the residual functional capacity to engage in work involving simple, repetitive tasks in a stress-free type of environment" and that claimant's examining physicians agreed that her various problems would interfere with her performing any work, the court held that there was no evidence that claimant was capable of performing gainful activity of any kind. The court also found that the Secretary erred in placing greater weight on the testimony of the nonexamining medical advisor, who had conducted a "paper review" of her case for evaluating plaintiff's mental impairments, than on plaintiff's physicians' testimony. In so ruling, the court concluded that there was not substantial evidence in the record, as a whole, to support the Secretary's finding that claimant did not meet the listing of impairments, and therefore the case would be remanded for an award of benefits. Counsel notes that, historically, the Secretary has refused to make an evaluation of a claimant's residual functional capacity in widow's disability cases.

Benefits Withheld to Recover Previous Widow's Benefits Overpayment May Not Be Counted as Income for SSI Purposes

42,500. Healea v. Bowen, No. 86-3060 (C.D. Ill. May 6, 1987). Plaintiff represented by John Porter, Prairie State Legal Services, 203 N. Main, Bloomington, IL 61701, (309) 827-5021. [Here reported: (Accession No. 1010015) 42,500A Complaint (1p.); 42,500B Answer (3pp.); 42,500C Plf's Brief in Support of Summary Judgment (13pp.); 42,500D Def's Memo in Support of Summary Affirmance (9pp.); 42,500E Plf's Brief in Opp'n to Summary Affirmance (7pp.); 42,500F Recommendation (12pp.); 42,500G Def's Objections to Magistrate's Report & Recommendation (30pp.); 42,500H Plf's Response to Objections to Magistrate's Recommendation (10pp.); 42,500-I Order Adopting Magistrate's Recommendations (2pp.).]

In adopting the magistrate's recommendation, the court has held that defendant Secretary of HHS may not treat as available income for SSI purposes plaintiff's widow's disability benefits that are being withheld to recover for a previous overpayment. Plaintiff is a 69-year-old widow of limited income who began receiving widow's insurance benefits from the SSA in 1976. In 1982, plaintiff was awarded SSI. Defendant subsequently determined that plaintiff had been overpaid disability benefits, and defendant began recovery of this overpayment by withholding a portion of plaintiff's total expected widow's benefits. Plaintiff sought and was denied an increase in her SSI benefits to make up for the reduction in widow's benefits. After an administrative hearing, the ALJ determined that the regula

tions require that the amount withheld from plaintiff's widow's benefits be counted as income in computing her SSI benefits. Defendant adopted the ALJ's decision, and the Appeals Council denied review. Plaintiff subsequently sought judicial review, and the magistrate found that defendant's decision to count as income the amounts being withheld is contrary to the congressional intent expressed in the Social Security Act and is therefore invalid. The magistrate relied on the statutory requirement that only income "received" can be counted in determining eligibility and amount of assistance. Further, the magistrate rejected defendant's argument that his interpretation of the statute is entitled to deference, noting that the Secretary's interpretation has not been consistently applied. The district. court adopted the magistrate's recommendations and ordered defendant to recalculate plaintiff's SSI benefits.

Case Challenging Denial of Disability Benefits Remanded for Consideration of New Evidence Not Previously Available

42,545. Cornett v. Heckler, No. 85-98 (E.D. Ky. Aug. 28, 1985). Plaintiff represented by Amy Turner, Appalachian Research & Defense Fund of Kentucky, P.O. Box 360, Hazard, KY 41701, (606) 439-2315. [Here reported: (Accession No. 1010068) 42,545A Memo in Support of Motion for Remand (9pp.); 42,545B Def's Response to Plf's Motion to Remand (3pp.); 42,545C Opinion (3pp.).]

The court remanded this action in which plaintiff challenged the ALJ's determination that he was not disabled within the meaning of the Social Security Act. Plaintiff had originally applied for social security disability benefits in December 1983. About four months after the Appeals Council denied review of the unfavorable ALJ decision, plaintiff suffered a heart attack and subsequently sought a remand of his denial of benefits under 42 U.S.C. § 405(g). He argued that he had new material evidence of his disability and that he had good cause for not incorporating it into the record below. The Secretary argued that the new evidence simply showed an alleged worsening of plaintiff's condition and was therefore cumulative. The court granted plaintiff's request for a remand. In so ruling, the court concluded that the evidence submitted, although obtained after the present action was filed, was "unavailable" for submission to the agency at the time of the hearing and thus could properly form the basis for a decision to remand. Counsel notes that this case was decided prior to Oliver v. Secretary of HHS, 804 F.2d 964 (6th Cir. 1986), a case that implies that courts may now require a greater showing of "good cause" before granting a motion for remand. However, this case may still be helpful in arguing that new evidence is "material" under section 405(g), especially in distinguishing evidence that the Secretary characterizes as merely cumulative from evidence that clarifies or confirms a prior diagnosis. Counsel also points out that advocates need to be aware of amendments to 20 C.FR. §§ 404.970 and 416.1470 in remand cases. The new regulations indicate that the Appeals Council will not consider evidence that shows "a new or worsened condition." See 52 Fed. Reg. 4002 (Feb. 9, 1987).

Claimant Entitled to Child's Insurance Benefits Retroactive to Date Father Was Found Disabled

42,486. D., D. ex rel. R.B., In re, (SSA, Office of Hearings & App., May 13, 1987). Claimant represented by Curtis Child, Legal Services of Northern California, 190 Reamer St., Auburn, CA 95603, (916) 823-7560. [Here reported: (Accession No. 1010007) 42,486A Claimant's Memo (11pp.); 42,486B Decision (4pp.).]

The ALJ has found that claimant is entitled to child's insurance benefits retroactive to 1977, the date on which his father became eligible for disability benefits. Claimant's mother applied for child's insurance benefits on her child's behalf in April 1977. The application was based on the father's earnings record. Because the father did not pursue his claim for benefits, his application was denied. However, the child did not receive notice of this denial. The father reapplied for disability benefits in August 1978 and was found eligible. The child was not notified that his father's application for benefits had been approved even though the SSA was aware of his address. The child again applied for child's insurance benefits on his father's earnings record in May 1986, and this application was approved retroactive to April 1985. At this time, claimant's mother discovered that the father had been eligible for disability benefits since August 1977, and claimant alleged that he was entitled to retroactive benefits from the date his father became eligible. The ALJ found that, pursuant to 42 U.S.C. § 402(j)(2) and 20 C.FR. § 404.620(a), an application is deemed valid if the applicant satisfies the requirements for eligibility before a final decision is made and that a claimant is entitled to a written notice of that determination. Since SSA did not make a determination on the July 1977 application, and since the child met all the requirements for entitlement to benefits at the time his father became eligible for disability benefits, the ALJ found that the child was entitled to retroactive benefits from August 1977. Counsel notes that, at the hearing, the ALJ noted that equitable estoppel does not apply to the SSA, and therefore he could not base his decision on the fact that the SSA did not advise the child that his father had reapplied for benefits. His decision was based solely on 42 U.S.C. § 402(j)(2) and 20 C.FR. § 404.620(a). However, the ALJ also rejected the Secretary's reconsideration determination that the denial of the father's application was a denial of the child's application, since the child is entitled to his own written notice.

UNEMPLOYMENT COMPENSATION

Tenth Circuit Reverses Dismissal of Suit Challenging Lack of Adequate Notice in Unemployment Hearings

38,717. Shaw v. Valdez, No. 84-2791 (10th Cir. May 26, 1987). Plaintiff-Appellant represented by Eric Solem, Legal Aid Society of Metropolitan Denver, 1905 Sherman St., Denver, CO 80203-1181, (303) 837-1321. [Here reported: (Accession No. 1010051) 38,717C Opinion (12pp.). Previously reported at 19 CLEARINGHOUSE Rev. 202 (June 1985).]

The Tenth Circuit has held that the Colorado procedure

for administering unemployment benefits violates the fair hearing requirement of 42 U.S.C. § 503(a)(3) in failing to provide prior written notice of the issues to be considered at unemployment compensation hearings. Plaintiff was terminated from his job and was awarded full unemployment benefits. The employer appealed, and defendant Division of Employment and Training sent plaintiff notice of the time and place of the hearing, as required by Colorado law. Plaintiff was not advised of his right to counsel or of the issues to be presented on appeal. Plaintiff appeared without counsel, additional allegations were brought forth against him, and the hearing officer reversed the award of benefits. After an unsuccessful appeal to the Industrial Commission, plaintiff brought suit in district court, where his complaint was dismissed. In reversing, the Tenth Circuit has held that the notice procedure deprived plaintiff of his due process right to a fair hearing under section 503, since plaintiff was not provided with adequate notice of the issues to be considered. The court noted that the notice covered “all issues" relating to plaintiff's termination and eligibility for benefits, and he would have had to research 20 categories of disqualification to prepare for the discharge issue alone. The court found that plaintiff was entitled to know in advance all of the factual and legal issues to be presented at the hearing, and that Colorado's procedures were insufficient to satisfy that requirement of basic fairness. Thus the court found that the district court erred in dismissing plaintiff's complaint and remanded for a determination of whether plaintiff should prevail on the merits.

Temporary Employee's Refusal to Take Drug Test Not Disqualifying Conduct

42,517. Doe, John, In re, No. 0108-87 (Dep't Employment Sec. Mar. 4, 1987). Claimant represented by Peggy Rossing, New Hampshire Legal Assistance, 134 Pleasant St., Berlin, NH 03570, (603) 752-1102. [Here reported: (Accession No. 1010034) 42,517A Decision of Appeal Tribunal (2pp.).]

Claimant, a temporary employee, has been awarded unemployment benefits based on a state appeals board's finding that it was not disqualifying conduct for claimant to refuse drug testing, which the employer required as a condition of permanent employment. Claimant was hired through a temporary employment agency to read meters, and he was subsequently offered a permanent position. As a condition to being hired on a full-time basis, claimant was required to take a physical, including a urinalysis. Although claimant took the physical, he refused to submit to the urinalysis when he learned that its purpose was to test for drugs. Claimant was discharged for refusing to take the drug test, and his claim for benefits was denied. In reversing the denial, the New Hampshire Unemployment Appeal Tribunal held that claimant was improperly discharged for conduct that was not connected with his work. In addition, the board found that claimant did not voluntarily terminate his employment, and therefore the employment agency is liable for his benefits.

WELFARE

Settlement Requires North Carolina to Implement 1986 Amendment to AFDC Statute Eliminating Grandparent Deeming

42,165. Cash v. Kirk, No. C-C-87-98M (W.D.N.C. May 21, 1987). Plaintiffs represented by Douglas Sea, Legal Services of Southern Piedmont, 700 E. Stonewall St., Charlotte, NC 28202, (704) 376-1608. [Here reported: (Accession No. 1010024) 42,165B Memo in Support of Plf's Motion for Prelim. Inj. (not filed) (9pp.); 42,165C Stipulation of Settlement & Dismissal with Prejudice (32pp.); 42,165D DSS Administrative Letter (20pp.). Previously reported at 21 CLEARINGHOUse Rev. 60 (May 1987).]

The court has approved a stipulated settlement in this action 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). Plaintiffs, indigent pregnant women and mothers with children, initiated this class action arguing 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 grandparents of the dependent children violated 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. Plaintiffs contended that the state's policy caused irreparable harm by depriving them and their children of AFDC and Medicaid benefits necessary to obtain food, shelter, medical care, and other necessities of life. Plaintiffs also argued 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 refused to implement the amendment. The stipulated settlement provides for dismissal of the action with prejudice in exchange for defendants' agreement to fully implement the 1986 amendment, eliminating the practice of grandparent deeming as applied to 18-year-old parents and their children. Further, the settlement mandates that named plaintiffs and all current AFDC recipients will automatically receive all benefits they are or were eligible for since the date of enactment of the amendment. Also contained in the settlement are provisions setting forth means of giving notice of the change and providing benefits to other members of the proposed plaintiff class. Counsel has also provided a copy of the state Division of Social Services' letter to counties implementing the settlement and detailing how the retroactive relief is to be implemented, which may be of interest to other advocates.

AFDC Recipients Object to Magistrate's Denial of Preliminary Relief in Challenge to Oklahoma's Lump Sum Rule

42,513. Hill v. Fulton, No. CIV-87-943-BT (W.D. Okla. filed May 22, 1987). Plaintiffs represented by Steven Novick, Gary Dart, Judy Newbold, Legal Aid of Western Oklahoma, 2901 Classen Blvd., Oklahoma City, OK 73106, (405) 557-0020. [Here reported: (Accession No. 1010042) 42,513A Complaint (17pp.); 42,513B Plfs' Memo in Support of Motion for Prelim.

Inj. (46pp.); 42,513C Plfs' Supp. Argument in Support of Prelim. Inj. (7pp.); 42,513D Defs' Response to Supp. Argument (3pp.); 42,513E Plfs' Rebuttal Argument (5pp.); 42,513F Proposed Findings of Fact & Recommendations for Disposition (16pp.); 42,513G Plfs' Objections to Magistrate's Proposed Findings & Recommendations (15pp.).]

Plaintiff AFDC recipients have filed with the district court judge objections to the magistrate's recommendation that injunctive relief be denied regardless of the magistrate's finding that plaintiffs were likely to prevail on the merits of their claims challenging Oklahoma's implementation of the lump sum rule. Plaintiffs' suit challenges (1) the formula applied by the Department of Human Services (DHS) to determine an AFDC recipient's period of ineligibility, and (2) the failure of DHS to provide advance notice of the lump sum rule to AFDC applicants under the federal notice regulation, 45 C.FR. § 206.10 (a)(2)(i). In January 1985, Oklahoma revised its AFDC standard of need upward, while continuing to pay the same level of benefits. This revision of the need standard effectively decreased AFDC payments from 100 percent of the need to 62 percent of the need. State welfare officials failed to identify the implications of the revised need standard on the lump sum rule and continued making ineligibility determinations based on the grant amount rather than the new need standard. Plaintiffs allege that this oversight resulted in longer periods of ineligibility than permitted by the Social Security Act, 42 U.S.C. § 602(a)(17), and they seek recomputations of all periods of ineligibility and notice of the error to all persons affected by the lump sum rule after January 1985. In addition, plaintiffs seek to require DHS to provide notice of the lump sum rule to all present recipients of and future applicants for AFDC and to provide a restoration of the AFDC benefits for those families who were terminated on the basis of the lump sum rule without prior notice of the rule. Plaintiffs' request for a preliminary injunction on behalf of three named plaintiffs was referred to a magistrate for hearing. The magistrate found that defendants had been employing an illegal ineligibility formula, that the trial on the merits should be consolidated with the hearing for preliminary relief, and that final injunctive relief should be granted on this claim. Although the magistrate found that plaintiffs were likely to prevail on the merits of their notice claim, he recommended that preliminary relief be denied to two of the plaintiffs for failure to demonstrate irreparable injury. Counsel notes that defendants have agreed to provide all relief requested by plaintiffs on the illegal ineligibility formula claim.

AFDC Recipient Challenges Washington's Implementation of the Excess Real Estate Grace Period Provisions of DEFRA

42,495. Floyd v. Sugarman, No. C87 327T (W.D. Wash. filed May 1, 1987). Plaintiff represented by Darcy Norville, Elizabeth Schott, Evergreen Legal Services, 500 W. 8 St., Vancouver, WA 98660, (206) 693-2941. [Here reported: (Accession No. 1010010) 42,495A Complaint (16pp.).]

Plaintiff brings this class action on behalf of recipients and former recipients of AFDC to challenge the Washington Department of Social and Health Services Secretary's implementation of the grace period provisions of the Deficit Reduction Act of 1984 (DEFRA), 42 U.S.C. § 602(a)(7)(B). The