"Agent Orange" Settlement. Appeal was taken from order of the United States District Court... which approved plan for distribution of fund created by settlement of Agent Orange class action. The Court of Appeals... held that: (1) appeal by lead counsel was timely; (2) it was not an abuse of discretion to adopt distribution plan which did not require proof that veteran's death or disability resulted from exposure to Agent Orange in view of trial court's conclusion that causation could not be shown for any individual or any disease; but (3) it was improper to devote a portion of the fund to establish a foundation to fund projects and services that would benefit the entire class, although court could set aside a portion of the settlement proceeds for particular programs designed to assist the class. Affirmed in part, reversed in part, and remanded. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 179 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Servicemen's Exposure to Agent Orange. Appeal was taken from order of the United States District Court... which entered summary judgment in favor of manufacturers of Agent Orange in actions brought by servicemen and relatives of servicemen who were exposed to Agent Orange in Vietnam. The Court of Appeals ... held that: (1) government possessed, at pertinent times, information as great as or greater than that possessed by manufacturers with respect to association between dioxin exposure and cases of chloracne and liver damage, so that manufacturers were entitled to assert government contracted defense, and (2) weight of present scientific evidence does not establish that Agent Orange injured personnel in Vietnam, so that manufacturers could not have reached any duty to inform the government of such hazards. Affirmed. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 187 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Servicemen's Exposure to Agent Orange. Servicemen and their relatives brought Federal Tort Claims Act action against United States to recover for injuries resulting from servicemen's exposure to Agent Orange in Vietnam. The United States District Court... dismissed and plaintiffs appealed. The Court of Appeals...held that: (1) class counsel could not assert appeal of denial of class certification on behalf of individual plaintiffs; (2) liability was barred by the Feres doctrine; and (3) liability was barred by discretionary function exception to the Federal Tort Claims Act. Affirmed in part and dismissed in part. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 194 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Veterans' Health Care: Actions and Interactions Paralyzed Veterans of America has published this study, prepared by the American Public Health Association, that discusses the growing needs in, and demands on, the veterans' health care system. The authors maintain that policies designed to constrain costs of the veterans' health care system are not being coordinated with the policies of other health programs. The study is published in three parts: a 77-page final report; a 14-page executive summary; and a 162-page detailed study of four Veterans Administration medical districts. Copies of Veterans' Health Care: Actions and Interactions can be obtained from Paralyzed Veterans of America, Attn; MARAD, 801 18th St., NW, Washington, DC 20006, (202) 872-1300. Claims of Wives and Children of Servicemen Exposed to Agent Orange. Appeal was taken from order of the United States District Court ...which dismissed direct claims against government by wives and children of servicemen exposed to Agent Orange in Vietnam. The Court of Appeals... held that Feres doctrine precluded court from exercising jurisdiction over the claims. Affirmed in part and vacated and remanded in part. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 201 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Government's Liability for Contribution to Agent Orange Settlement. Manufacturers of Agent Orange who had settled with servicemen and their relatives in class action arising out of injuries allegedly resulting from exposure of servicemen to Agent Orange in Vietnam sought contribution and indemnity from United States. The United States District Court... dismissed and manufacturers appealed. The Court of Appeals... held that: (1) Feres and Stencel doctrines precluded recovery; (2) chemical manufacturers who insisted that they were not at fault could not contend that United States was joint tort-feasor; and (3) if manufacturers had valid claim against Government based on Government's superior knowledge of dangers imposed by Agent Orange, they could have no liability to servicemen as to which United States could be required to indemnify them. Affirmed. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 204 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Exposure to Agent Orange During Testing. Persons who claimed injuries as the result of exposure to Agent Orange while it was being tested in Hawaii, and widow of one such person, brought action against manufacturers, United States, and University of Hawaii. Similar action was brought against manufacturer by physician who claimed that he suffered ailments as a result of exposure to Agent Orange while in Vietnam working for the United States Agency for International Development. The United States District Court... dismissed physician's claim for failure to comply with discovery orders and granted summary judgment against other claimants, and appeals were taken. The Court of Appeals... held that: (1) dismissal of physician's claim for failure to complete deposition was proper; (2) filing of principle Agent Orange class action on behalf of servicemen and their relatives did not toll limitation of actions on plaintiffs' claims; (3) government's decision to use Agent Orange as defoliant was the exercise of a discretionary function within that exception to the Tort Claims Act; and (4) wrongful death claim was barred by military contractor defense. Affirmed in part and vacated and remanded in part. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 210 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Fee Sharing Agreement in "Agent Orange" Class Action. One member of plaintiff's management committee in Agent Orange class action appealed from order of the United States District Court...which upheld fee sharing agreement between lead counsel. The Court of Appeals... held that agreement under which certain members of management committee would advance funds for litigation expenses and receive threefold return on that investment out of the fee settlement was invalid and would not be enforced in view of its potential for creating conflict between counsel and the class. Reversed. "Agent Orange" Prod. Liab. Litig., In re, Reprinted with permission from 818 F.2d 216 (2d Cir. 1987), Copyright © 1987 West Publishing Co. [30,873]. Attorney Fees from "Agent Orange" Settlement Fund. Appeal was taken from order of the United States District Court... which awarded attorney fees from fund resulting from settlement of Agent Orange class action against man House Committee on Ways and Means Recommends 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). 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]. 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. VA-Insured Mortgage. Mortgagors under VA insured mortgage brought third-party complaint Veteran's Disability Benefits. Secretary of La- WELFARE GA Eligibility. Applicant appealed from order 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. 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]. 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. ADVANCE SHEE 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. Antkowiak v. Ambach, 653 F. Supp. 1405 (W.D.N.Y. 1987) [21 Clearinghouse Rev. 306 (July 1987)]: 42,637A Opinion (14pp.); 42,637B Appellant-Cross-Appellee's Brief (84pp.); 42,637C Appellee-Cross-Appellant's Brief (65pp.); 42,637D Amicus Brief of Western New York Disability Law Coalition (53pp.); 42,637E Appellant-Cross-Appellee's Reply Brief (43pp.). 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.); 42,555J 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.). Curry v. Fidelity Consumer Discount Co., 656 F. Supp. 1129 (E.D. Pa. 1987) [21 Clearinghouse Rev. 417 (Aug./Sept. 1987)]: 42,547A Complaint (11pp.); 42,547B Request for Admissions (2pp.); 42,547C Plf's Motion for Summary Judgment & Memo in Support (72pp.); 42,547D Opinion & Order (9pp.); 42,547E Plf's Motion for an Award of Att'y Fees & Memo in Support (15pp.). Knutzen v. Eben Ezer Lutheran Hous. Center, 815 F.2d 1343 (10th Cir. 1987) [21 Clearinghouse Rev. 418 (Aug./Sept. 1987)]: 42,553A Complaint (7pp.); 42,553B 1st Amended Complaint (9pp.); 42,553C Complaint in Intervention (11pp.); 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-I 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-I 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-O 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 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: photo by Carol Edstrom |