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House Committee on Ways and Means Recommends

Approval of a New Welfare Reform Bill

The House Committee on Ways and Means has recommended for approval H.R. 1720, the Family Reform Act of 1987, which would replace the existing AFDC program with a new Family Support Program. The Family Support Program would emphasize work, child support, and need-based family support supplements. It would also amend Title IV of the Social Security Act to encourage and assist needy children and parents to obtain the education, training, and employment needed to avoid long-term welfare dependency. A copy of the 182-page report issued by the Committee is available from the Clearinghouse, No. 42,411F, free of charge to all LSC-funded programs, and for $18.20 to others. Copies of the text of H.R. 1720 and of another welfare reform bill, H.R. 30, the Fair Work Opportunities Act of 1987, are also available from the Clearinghouse. See 21 Clearinghouse Rev. 297 (July 1987).

of the Superior Court ... affirming city's denial of general assistance. The Supreme Judicial Court ... held that: (1) city ordinance making applicants who caused termination of their employment ineligible for general assistance was beyond scope of statute declaring applicant to be ineligible if he quits work after initial application, and (2) applicant could not be denied general assistance based on his failure to report income. Judgment vacated. Gilman v. City of Lewiston, Reprinted with permission from 524 A.2d 1205 (Me. 1987), Copyright © 1987 West Publishing Co.

ufacturers. The Court of Appeals ... held that (1) Court's across-the-board reduction in certain expenses and billable hours was proper; (2) use of national hourly rates was proper; (3) awards based on $150 per hour for partners, $100 per hour for associates, and $125 per hour for law professors were adequate; (4) Court did not abuse its discretion in awarding multipliers for quality to six members of plaintiffs' management committee; (5) Court properly declined to award risk multiplier; but (6) Court should not have abrogated award to one firm because of that firm's use of discovery materials obtained in class litigation to represent clients who had opted out of the class. Affirmed in part and reversed in part. “Agent Orange” Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 226 (2d Cir. 1987), Copyright © 1987 West Publishing Co. (30,873).

insured mortgage brought third-party complaint against VA, in foreclosure action. On (VA's) motion to dismiss third-party complaint, the District Court... held that there was no express or implied private right of action against (VA) for failure to adequately service a VA-insured mortgage and avoid foreclosure. Motion granted; case remanded to state court. Waterfield Mortgage Co. v. Harrington, Reprinted with permission from 657 F. Supp. 1368 (S.D. Ohio 1987), Copyright © 1987 West Publishing Co.

Telephone Hearings. Action was brought challenging policy of Department of Social Services of using telephone hearings with respect to denial, termination, or reduction of public assistance benefits. The Circuit Court... entered judgment in favor of Department, and appeal was taken. The Court of Appeals held that: (1) policy regarding telephone hearings was interpretation of rule and did not require promulgation pursuant to APA; (2) court would not invalidate rule on basis of hypothetical possibility; and (3) policy is not inconsistent with rule governing hearings. Affirmed. Detroit Base Coalition for the Human Rights of the Handicapped v. Michigan Dep't of Social Servs., Reprinted with permission from 405 N.W.2d 136 (Mich. Ct. App. 1987), Copyright © 1987 West Publishing Co. (37,560).

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Request for Correction of Status. Petition for writ of mandamus was filed against Secretary of Army to require Army Board for Correction of Military Records to consider request. The United States District Court ... dismissed petition. Petitioner appealed. The Court of Appeals ... held that no statute of limitations prevented Board from considering request. Affirmed. Guerrero v. Marsh, Reprinted with permission from 819 F.2d 238 (9th Cir. 1987), Copyright © 1987 West Publishing Co.

Veteran's Disability Benefits. Secretary of Labor of Puerto Rico in representation of veteran, brought action against Administrator of Veterans' Affairs and other officers of Veterans' Administration, challenging discontinuation of veteran's disability benefits. Defendants moved to dismiss. The District Court... held that: (1) Secretary of Labor lacked standing to represent veteran; (2) veteran was required to first take case on appeal to Board of Veterans' Appeals; and (3) court was not authorized to review action challenging constitutionality of application of statute governing benefits. Ordered accordingly. Secretary of Labor of Puerto Rico v. Turnage, Reprinted with permission from 657 F. Supp. 1033 (D.P.R. 1987), Copyright © 1987 West Publishing Co.

Work Readiness Program. Applicants for county's work readiness program brought action against county and state seeking injunctive and declaratory relief, and moved for class certification as well as intervention of third plaintiff. The District Court ... granted judgment in favor of county and state, and applicants appealed. The Court of Appeals ... held that: (1) county substantially complied with work readiness statute and rules; (2) county did not violate equal protection rights in terminating applicants from program; (3) notices sent by county to applicants were adequate and did not violate due process; and (4) motions for class certification and intervention of additional plaintiff were properly denied. Affirmed. Ward v. Smaby, Reprinted with permission from 405 N.W.2d 254 (Minn. Ct. App. 1987), Copyright © 1987 West Publishing Co.

WELFARE

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Pleadings and/or briefs are now available for the following cases, which were previously reported in the Advance Sheet Highlights. The bracketed number following the entry is the Clearinghouse Number. Please use these numbers with the appropriate letters when ordering pleadings from our Order Department.

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Barnes v. Santacroce, 815 F.2d 888 (2d Cir. 1987) (21 Clearinghouse Rev. 422 (Aug./Sept. 1987)]: 42,555A Amended Consent Decree (17pp.); 42,555B Opinion & Order (7pp.); 42,555C Plfs' Affidavit in Support of Motion to Enforce Compliance (12pp.); 42,555D Affidavit in Opp'n to Modification (10pp.); 42,555E Def's Declaration in Opp'n to Plfs' Motion for Contempt (10pp.); 42,555F Affidavit in Reply to Motion to Enforce Compliance (15pp.); 42,555G Transcript (23pp.); 42,555H Opinion & Order (7pp.); 42,555-1 Transcript (36pp.); 42,555) Affidavit in Support of Plfs-Appellants' Motion for a Stay Pending Appeal (18pp.); 42,555K Reply Affidavit (5pp.); 42,555L Affidavit in Reply to Defs' Supp. Affidavits (87pp.); 42,555M Plfs-Appellants’ Brief (87pp.); 42,555N Plf's Memo in Support of a Stay (47pp.); 42,555-0 Plfs' Reply Memo of Points & Auth. in Support of Motion (12pp.); 42,555P Opinion (3pp.).

1987)]: 42,553A Complaint (7pp.); 42,553B 1st Amended Complaint (9pp.); 42,553C Complaint in Intervention (11 pp.); 42,553D Intervenor's Complaint (10pp.); 42,553E Plfs/Appellant's Opening Brief (38pp.); 42,553F Amicus Brief for the National Housing Law Project in Support of Plfs/Appellants (49pp.); 42,553G Defs/Appellees' Brief (51pp.); 42,553 Defs/Appellees? Supp. Answer Brief (12pp.); 42,553-1 Amicus Brief for the American Ass'n of Homes for the Aging in Support of Defs/ Appellees (49pp.); 42,553J Plfs/Appellants’ Reply Brief (19pp.); 42,553K Opinion (13pp.). Toledo v. Nobel-Sysco, Inc., 651 F. Supp. 483 (D.N.M. 1986) (21 Clearinghouse Rev. 193 (June 1987)]: 42,624A Complaint (4pp.); 42,624B Answer (3pp.); 42,624C Def's Memo in Support of Motion to Dismiss or for Summary Judgment (7pp.); 42,624D Plf's Memo in Response to Def's Motion (18pp.); 42,624E Opinion & Order (6pp.); 42,624F Plf's Memo in Support of Motion in Limine to Exclude Evidence of Purported Accommodation Made After Filing Discrimination Complaint (8pp.); 42,624G Plf's Memo in Support of Motion in Limine to Exclude Testimony re the Meaning of Fed. Regs. & Concerning Tort Law (7pp.); 42,624H Def's Memo in Response to Plf's Motion (8pp.); 42,624-1 Plf's Post-Trial Memo (24pp.); 42,624J Def's Post-Trial Memo (34pp.); 42,624K Opinion & Order (22pp.); 42,624L Plf's Memo in Support of Motion to Alter Judgment (8pp.); 42,624M Plf's Memo in Reply to Def's Memo in Response to Plf's Motion (2pp.); 42,624N Order (1p.); 42,624-0 Plf's Memo in Support of Motion for Order Reviewing Clerk's Settlement of Costs (4pp.): 42,624P Def's Response to Plf's Objections to Cost Bill (6pp.); 42,624Q Plf's Memo in Reply to Def's Response (3pp.); 42,624R Opinion & Order (3pp.).

Katherine Stevenson

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New Funding For Homeless Programs Pub. L. No. 100-71 is a supplemental appropriation for FY 1987 that includes $355 million in new funding for homeless programs. This development raises significant implications for legal services practice.

• Pub. L. No. 100-71 will double or triple funding available in most states for homeless programs. • Except for the Federal Emergency Management Agency (FEMA), all programs are new this year or are

programs that never before expressly received funding for the homeless. • Generally, federal and state agencies have not previously administered programs for the homeless.

Legal services programs have an important role in monitoring administrative developments leading to implementation of these new programs; local programs can also be very helpful in creating a pipeline of practical information about funding opportunities for programs serving the homeless. This would include making inquiries of federal, state, and local officials about development of guidelines, requests for proposals, etc., and passing that information on to homeless coalition members. Most state and federal administrators should welcome suggestions concerning the design and implementation of programs to spend these new funds because they unexpectedly have the responsibility for administering several new programs on short notice. Also, local staff attorneys and paralegals who have worked with shelters and other service providers should identify shelters that have established a good working relationship with a school, health clinic, or mental health center. Such relationships provide opportunities for cooperation in developing effective demonstration programs that could be funded under Pub. L. No. 100-71.

Finally, there will be opportunities for grants to legal services programs for provision of technical assistance, training, and manuals. The supplemental Community Services Block Grant appropriation and the "Homeless Block Grant" seem appropriate to fund technical assistance activities.

Although Pub. L. No. 100-71 is a supplemental appropriation for the current fiscal year that expires September 30, 1987, the funds remain available through September 30, 1988. However, Congress made it clear that agencies should act promptly, and specific timelines have been set for several programs to assure grants within 90 days. Therefore, various federal and state agencies will be under pressure to issue grants over the next several months.

The Urgent Relief for the Homeless Act, signed by the President on July 22, 1987, Pub. L. No. 100-77, will provide guidance for expenditure of appropriations in Pub. L. No. 100-71. The Urgent Relief for the Homeless Act is now known as the “Stewart B. McKinney Homeless Assistance Act.” Mr. McKinney was a congressman from Connecticut who died in May 1987. The final version of that Act, with accompanying conference report, is contained in House Report 100-174. The appropriation of funds for these programs is contained in Pub. L. No. 100-71; the final version is contained in House Report 100-195. Anyone with an active interest in this area may obtain copies of these documents by calling the local office of their congressional representative.

The following is a summary of supplemental appropriations for FY 1987 contained in Pub. L. No. 100-71, which is targeted on various homeless programs:

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A 10-page packet of background information is available from the Clearinghouse. Request Clearinghouse No. 42,640.

Copies of documents abstracted are available from the National Clearinghouse for Legal Services, 407 S. Dearborn, Suite 400, Chicago, IL 60605. Please cite the Clearinghouse Library number appearing at the beginning of each abstract. Requests from attorneys practicing in Legal Services Corporation projects will be filled free of charge, one copy per project. All other requests must be accompanied by a check payable to the National Clearinghouse for Legal Services, Inc." of 10 cents per page plus a postage and handling charge of $1.50 for orders of 50 pages or less and $3.00 for more than 50 pages.

ATTORNEYS/LEGAL SERVICES

Petitioner Awarded Attorney Fees in an Administrative Proceeding Involving Discipline of His Barber's License

ed that, since petitioner's violation was not “willful or repeated" and the actions of DPR were not “substantially justified," petitioner was entitled to the fee award. Counsel notes that this is the first decision involving the FEAJA. However, the Act only applies to small businesses, so very few legal services clients will benefit from it.

BANKRUPTCY

Mortgagees Not Entitled to Counsel Fees for Post-Petition Services Unless Extraordinary Circumstances Are Shown

42,009. Robaina v. Department of Professional Regulation, No. 87-1242F (Fla. Div. of Admin. Hearings July 9, 1987). Petitioner represented by Isidro Garcia, Florida Rural Legal Services, 572 S.W. Second St., Belle Glade, FL 33430, (305) 996-5266. (Here reported: (Accession No. 1010128) 42,009A Respondent's Proposed Findings of Fact & Conclusions of Law (3pp.); 42,009B Recommended Order (6pp.); 42,009C Respondent's Motion for Attorney's Fees & Costs (5pp.); 42,009D Final Order (2pp.); 42,009E Response to Motion for Attorney's Fees & Costs (5pp.); 42,009F Petitioner's Reply to Response to Motion for Attorney's Fees & Costs (4pp.); 42,009G Final Order (5pp.).)

The Florida Division of Administrative Hearings has ordered the state Department of Professional Regulation (DPR) to pay attorney fees and costs in the amount of $1,992 to petitioner under the Florida Equal Access to Justice Act (FEAJA). Petitioner requested attorney fees and costs as the prevailing party in an administrative proceeding involving discipline of his barber's license. He was charged with operation of a barber shop without a shop license. Although petitioner had a barber's license and occupational licenses, he did not understand that he was required also to have a shop license. As soon as an investigator explained the requirement to him, petitioner applied for and obtained the license. The hearing officer conclud

A Guide to Fair Hearings

42,630. Nickleberry, Cheryl, In re, No. 86-03649S (Bankr. E.D. Pa. July 14, 1987). Debtor represented by Arthur Haywood, Community Legal Services, 3638 N. Broad St., Philadelphia, PA 19140, (215) 227-2400. (Here reported: (Accession No. 1010137) 42,630A Memo of Germantown Savings Bank (5pp.); 42,630B Debtor's Memo in Opp'n to Germantown Savings Bank's Motion for Relief from the Stay (7pp.); 42,630C Opinion (33pp.).)

The court has consolidated four bankruptcy cases and has held that mortgagees are not entitled to counsel fees for post-petition services unless extraordinary circumstances are shown. The bankruptcy actions were consolidated because they raise related questions about demands of mortgagees for counsel fees against their respective mortgagor-debtors. These questions arise in cases where the debtors seek to cure mortgage arrearages in Chapter 13 plans for the following categories of services performed by the mortgagees' counsel: (1) pre-petition services in state court foreclosure proceedings, and (2) postpetition services in the bankruptcy court. The court held that, to the first category of services, state law controls, and reasonable counsel fees can be claimed. As to the second category of services, however, the court held that the Bankruptcy Code controls, and, unless all of the requirements of 11 U.S.C. § 506(b) are established or the matter fits into a narrowly defined class of extraordinary situations, mortgagees, like any other litigants, are not entitled to fees for any post-petition services. The court specifically declined to follow In re Cosby, 33 B.R. 949 (Bankr. E.D. Pa. 1983), an earlier decision that approved attorney fees for relief from stay litigation.

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Nassau/Suffolk Law Services in New York has recently published A Guide to Fair Hearings for advocates and public assistance recipients. The guide was prepared to help people who represent themselves at welfare fair hearings by explaining how to request a fair hearing, how to prepare for it, and what to expect along the way. It will assist advocates or recipients in presenting a clear and complete description of their case at the hearing.

A copy of the 28-page booklet is available for $1.50 from Nassau/Suffolk Law Services Committee, Inc., 40 Park Ave., Bay Shore, NY 11706.

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