on the misleading job orders, and statutory damages of $400 per violation. Prejudgment interest was also awarded to some of the plaintiffs.

Migrant Workers Unjustly Terminated by Orchard Owner Awarded Damages

42,591. Caugills v. Hepburn Orchards, Inc., No. JH-84-989 (D. Md. June 5, 1987). Plaintiffs represented by Gregory Schell, Keith Talbott, Susan Compernolle, Edward Tuddenham, Legal Aid Bureau, 11 High St., Salisbury, MD 21801, (301) 546-5511. [Here reported: (Accession No. 1010113) 42,591A Memo Opinion (30pp.).]

The district court has held that plaintiff migrant and seasonal agricultural workers, who were hired to pick crops but who were terminated between 2 and 17 days after hire, were deprived of the opportunity of a full season's employment without just cause. The seven plaintiffs alleged breach of contract and violations of the Migrant and Seasonal Agricultural Workers Protection Act (AWPA) and the Wagner-Peyser Act. The court held that the defendant orchard owner violated the terms of the clearance order by terminating plaintiffs without justification and that plaintiffs had proven by a preponderance of the evidence that their conduct was far less extreme and lapses in performance far more sporadic than defendant had alleged. In so ruling, the court found that, if some of the plaintiffs fired did occasionally engage in dilatory field behavior, it was not to such an extent as to be classified reasonably as "serious acts of misconduct." Finding that the AWPA provides plaintiffs more comprehensive protections than the WagnerPeyser Act or the common law of contracts, the court awarded damages only pursuant to the AWPA, 29 U.S.C. § 1854(c). Each plaintiff was awarded actual or statutory damages depending on the individual circumstances. The court also awarded prejudgment interest to the plaintiffs receiving actual damage awards.

NATIVE AMERICANS

New Mexico's Action Challenging Regulatory Control of "Indian Lands" Under Surface Mining and Reclamation Act Dismissed

42,594. New Mexico ex rel. Energy & Minerals Dep't v. United States Dep't of Interior, No. 85-6165 (D.C. Cir. June 5, 1987). [Here reported: (Accession No. 1010111) 42,594A Opinion (14pp.).]

The D.C. Circuit has affirmed the district court's decision dismissing plaintiff State of New Mexico's complaint challenging defendant Secretary's regulations concerning regulatory authority over Indian lands under the Surface Mining Control and Reclamation Act. Plaintiff originally filed a petition in the lower court challenging defendant Secretary's regulations, which provide the Office of Surface Mining Reclamation and Enforcement (OSMRE) with exclusive regulatory authority over Indian lands. Plaintiff named as defendants the Department of the Interior and its Secretary, and the acting director of OSMRE.

The Navajo Tribe of Indians was later permitted to intervene as a defendant, and it requested that the regulations be upheld. In the Tribe's answer to the complaint, it denied that plaintiff had any regulatory authority over surface mining and reclamation activities on Indian lands. The Tribe also filed a counterclaim requesting a declaratory judgment that certain lands be deemed “Indian lands" under the Act, and sought an injunction to prevent plaintiff from exercising any authority over the lands. The parties later submitted, and the court approved, an agreement providing that the complaint be dismissed with prejudice. Defendant Tribe subsequently moved for reconsideration, but was denied. Several motions followed, and a hearing was held. Ultimately, the district court denied the Tribe's request for a preliminary injunction and dismissed the Tribe's counterclaim. On appeal, the Tribe challenged the denial of its motion for a preliminary injunction, the dismissal of its counterclaim, and the dismissal of the original complaint. The appellate court affirmed the district court's order granting dismissal with prejudice of the original complaint, but vacated its order denying the Tribe's motion for a preliminary injunction and remanding the Tribe's counterclaim.

PRISONS

Courts Allows Prison to Convert Mess Hall into Dormitory and Increase Its Population Despite Consent Decree

42,555. Badgley v. Santacroce, No. CV 80-2916 (E.D.N.Y. June 17, 1987). Plaintiffs represented by Matthew Muraskin, Morton Marshack, Legal Aid Society of Nassau County, 250 Fulton Ave., Hempstead, NY 11550, (516) 565-5600. [Here reported: (Accession No. 1010124) 42,555Q Memor of Decision & Order (12pp.); 42,555R Memo of Decision & Order (38pp.); 42,555S Memo of Decision & Order (2pp.).]

The court has held in this class action that the conversion of a prison mess hall into a dormitory for 40 additional inmates does not violate maximum capacity provisions of an amended consent decree entered between the Nassau County Correctional Center (NCCC) and its inmates. The decree contains provisions regulating prison population, use of cots, and various services to inmates. Defendants moved to modify the decree by increasing the authorized maximum in-house population of the core facility from 710 to 750. The converted mess hall is in the building in which the core facility is located. Plaintiffs opposed defendants' actions, arguing that the space should be used to eliminate or at least minimize defendants' alleged violations of the decree, which include the use of cots and mattresses placed on the floor, double-celling beyond the established time limitations, double-celling in prohibited areas, and failure to comply with special housing provisions. Additionally, plaintiffs assert that increasing the population cap will adversely affect the NCCC's ability to provide ancillary services, causing curtailed visiting hours, deprivation of the indoor recreation area, and difficulty in gaining access to the law library. Plaintiffs moved for a deadline to enforce compliance

with the relevant provisions of the decree "on pain of contempt and the imposition of civil penalties." The court held that the conversion of the mess hall does not contravene the purposes and goals of the parties to the decree, but that it represents a changed condition sufficient to warrant modification of the decree. The court declared that the addition of inmates within the core facility does not tax the ancillary services to any significant decree and found, rather, that to deny the use of such space to the NCCC would adversely affect the public interest. The court stated that defendants had demonstrated their good-faith attempts to comply with the decree, and concluded that a 300-bed facility currently under construction at the NCCC will eliminate the use of cots and reduce doublebunking. The court entered an order (1) authorizing defendants to use the converted mess hall as a dormitory, (2) denying plaintiffs' motion to establish a deadline for compliance with the decree, and (3) declaring that, if plaintiffs allege any future decree violations, defendants will have the initial burden of proof to show compliance.

SOCIAL SECURITY/SSI

First Circuit Holds That Offset Provisions for Concurrent Disability and SSI Benefits May Not Be Applied Retrospectively

41,819. Dion v. Secretary of HHS, No. 87-1137 (1st Cir. July 9, 1987). Plaintiff-Appellee represented by Ellen Gordon, New Hampshire Legal Assistance, 795 Elm St., Manchester, NH 03101, (603) 668-2900. [Here reported: (Accession No. 1010123) 41,819E Brief for Defendant-Appellant (22pp.); 41,819F Brief for Plf-Appellee (19pp.); 41,819G Opinion (11pp.). Previously reported at 20 Clearinghouse Rev. 1335 (Feb. 1987).]

The First Circuit has affirmed the district court's decision in favor of the plaintiff and has concluded that the offset provisions of 42 U.S.C. § 1320a-6 should not be applied retrospectively. Prior to the enactment of section 1320a-6, individuals whose SSDI checks were delayed for any reason would not have their SSDI income considered when the agency determined their eligibility for SSI payments for that period. Thus, when a person finally received a retroactive SSDI check, he or she could, in some cases, have received full benefits for both the SSI and SSDI programs for the same period. Under section 1320a-6, a person's entitlement under the two programs was to be considered as a totality: a retroactive SSDI check would be offset by the amount of SSI that would not have been paid if the SSDI benefits had been paid when they were regularly due. The issue before the appellate court concerned the retrospective effect of section 1320a-6 on claims filed before the statute went into effect on July 1, 1981. Section 501(d) of Pub. L. No. 96-265 states that the offset provision shall be applicable to monthly insurance benefits under Title II of the Social Security Act determined on or after the first day of the thirteenth month that begins after the date of the enactment of the Act. The conflict over the meaning of this provision arises in cases, such as this one, that were initiated before July 1, 1981, but that were not finally adjudicated by the agency and the courts until after that date. Although the Secretary had argued that the word "determined" is synonymous with “final

In 1982, Rural Legal Services of Tennessee (RLST) began an effort to improve the involvement of private attorneys in the delivery of legal services to low-income people. As a result of that effort, RLST has published its Directory of Social Service Agencies for Low-Income People. This directory provides a list of the various state, county, and regional agencies in the 12-county service area of RLST. In addition, this directory (1) assists attorneys working with low-income clients to become familiar with the area's social services; (2) assists clients in getting the services they need; and (3) assists the agencies themselves in working with each other on behalf of the area's low-income and elderly people. Agencies are listed in two categories: those that serve the region or several counties, and those that serve one county. Copies of the directory are available from RLST, P.O. Box 3358, Oak Ridge, TN 37831..

adjudication," the appellate court stated that it could find no language in the statute that would indicate that "determine" refers to the "final adjudication" rather than to an earlier stage of the proceedings, and there is nothing in the offset provision that mentions the signing of the award authorization. The First Circuit concluded that this case presented a clearly legal issue concerning the retrospective application of a statute, which is covered by a congressional policy both implicit in the statute's postponement clause and explicit in the legislative history. However, like the district court, the First Circuit decided the case on the ground that section 1320a-6 should not be applied retrospectively and did not reach the issue of whether this section applies generally to concurrent SSDI and SSI benefits.

HHS Seeks Reopening and Reversal of District Court's Decision Allowing Class of OASDI and SSI Recipients

15,795. Blankenship v. Secretary of HHS, No. 86-6240 (6th Cir. filed July 10, 1987). Plaintiffs-Appellees represented by Henry Freedman, Sherry Leiwant, Center on Social Welfare Policy and Law, 95 Madison Ave., New York, NY 10016, (212) 679-3709; Dennis Bricking. [Here reported: (Accession No. 1010079) 15,795Z-28 Brief for the Appellant (40pp.); 15,795Z-29 Brief of Plfs-Appellees (31pp.); 15,795Z-30 Reply Brief for the Appellant (11pp.). Previously reported at 18 CLEARINGHOUse Rev. 301 (July 1984).]

Briefs have been filed in this action in which defendant HHS seeks to reopen and reverse the district court's previous decision allowing plaintiffs, Kentucky OASDI and SSI recipients, to proceed as a class. Plaintiffs originally filed suit challenging defendant's practice of delaying for more than 30 days hearings concerning disability claims. Pursuant to Heckler v. Day, 467 U.S. 104 (1984), in which the Supreme Court held that courts may not impose across-the-board, mandatory time

limits on defendant for processing administrative appeals, defendant argues that he can only be found to have violated the Social Security Act in individual cases. Defendant further argues that Day eliminated the ability of a court to certify a class under Fed. R. Civ. P. 23. Plaintiffs contend that the district court has already decided their suit can proceed as a class action, and that Day does not preclude class actions challenging unreasonable agency delay in processing social security and SSI appeals because (1) Day did not immunize defendant from judicial scrutiny of claims of classwide delay in rendering hearing or Appeals Council decisions within a reasonable time; and (2) the district court did not abuse its discretion under Rule 23 by allowing the action to continue as a class action.

Prior to the filing of these briefs, the district court found that there was a pattern of unreasonable delays and ordered that notice be given to plaintiffs of possible judicial and administrative remedies in the event of further unreasonable delays. Pursuant to the court's order, defendant is now mailing the notice informing plaintiffs of their right to a timely decision, the Social Security Administration's intention to issue a timely decision, the procedure for obtaining information on the status of requests for review, and of the right to seek review of alleged unreasonable delays in federal court.

HHS's Unreasonable Delays in Scheduling Disability Claims Hearings Violates Social Security Act

28,469. Barnett v. Bowen, No. 74-270 (D. Vt. July 8, 1987). Plaintiff represented by Thomas Garrett, Vermont Legal Aid, 12 North St., P.O. 1367, Burlington, VT 05401, (802) 863-2871. [Here reported: (Accession No. 1010107) 28,469Z-6 Memo of Decision & Order (20pp.). Previously reported at 20 CLEARINGHOUSE REV. 623 (Aug./Sept. 1986).]

The district court has held that unreasonable delays in scheduling hearings on requests for reconsideration and administrative hearings to review denial of plaintiff applicants' disability benefits under Titles II and XVI of the Social Security Act violate the Act. The court has also ordered that the Secretary must send individualized notices explaining the reasons for the delay to all disability claimants in Vermont whose requests for reconsideration or an ALJ hearing are delayed for more than three months. Following the decision of the U.S. Supreme Court in Heckler v. Day, 467 U.S. 104 (1984), the Second Circuit remanded these consolidated actions to the district court to apply broad equitable power and design appropriate class-wide declaratory and injunctive relief to remedy violations of plaintiffs' clearly established statutory rights. The district court has held that (1) unreasonable delays in scheduling hearings on requests for reconsideration and administrative hearings to review denial of disability benefits under Titles II and XVI violate the Act; (2) Secretary Bowen shall provide to all claimants who have been denied disability benefits and who request reconsideration and hearing a notice that shall be delivered simultaneously with acknowledgment of a claimant's request; (3) the Secretary shall submit to the clerk of the court at the end of each quarterly period a written statement that reports the number of requests for reconsideration and admini

526

strative hearing during each month of the quarter, the number of cases reported that have not been scheduled for hearing, and identification of each case reported during the preceding quarter that remains unscheduled for hearing; and (4) the Secretary shall provide to all claimants whose cases are identified in the quarterly report under (3) above individualized notice that shall be delivered at or about the time the quarterly report is submitted to the court. The notice shall set forth the reasons for the delay in scheduling the hearing, the identity of the SSA representative to be contacted for further information, and the right to seek relief in the district court as a member of the plaintiff class.

ALJ Holds SSI Claimant Who Earned Over $300 Per Month Was Not Engaged in Substantial Gainful Activity

42,634. Barnes, Romer, In re, (SSA, Office of Hearings & App., Mar. 9, 1987). Claimant represented by Marie Zawtocki, Disability Advocacy Project, 4732 S. Central Ave., Phoenix, AZ 85040, (602) 268-0211. [Here reported: (Accession No. 1010132) 42,634A Motion to Present Claimant's Written Statement & Facts of Law (15pp.); 42,634B Decision (6pp.).

The ALJ has held that a social security claimant charged with an overpayment because he performed work and received earnings in excess of $300 per month was not engaged in substantial gainful activity and is entitled to continuing disability benefits. Claimant filed for SSI disability benefits in 1982 and was initially found disabled. In 1985, he was notified that his claim was being reviewed because of evidence that he had engaged in substantial gainful activity, and in 1986 SSA sent him a formal determination that he was overpaid $13,031. Claimant filed a request for reconsideration, which was denied, and then filed for and was granted a request for rehearing. Claimant is a 60-year-old functional illiterate, whose only job was on a dairy farm on which he grew up and where his father worked. After he was injured and began receiving disability benefits, he worked only "as needed." According to his employer, claimant's skills had deteriorated to the extent that his work was only marginal. In November 1986, claimant was finally terminated because his employer could no longer cope with his limitations. In contesting the overpayment, claimant asserted that his work did not constitute substantial gainful activity as defined in 20 C.F.R. §§ 404.1571-.1576, because it required unusual supervision and concessions, was not performed satisfactorily, and was offered to him to help his self-esteem. Claimant also contended that, even though his earnings were in excess of $300 per month, his work activity could not be characterized as substantial, and thus he met his burden of rebutting the earnings presumption. Finally, claimant asserted his employment was an act of charity by an employer who had known him since he was a child, had employed his father, and had employed claimant even though he required constant supervision and limited responsibility. The employer stated that, after claimant's health had deteriorated, he accommodated claimant by giving him fewer hours and simpler tasks, and that he had tried to help claimant as much as possible by giving him work to help his self-esteem. The ALJ held that claimant's work did not constitute substantial gainful activity, that his disability has

not ceased, and that he continues to be entitled to a period of disability and disability insurance benefits.

Money Deposited in Joint Account for Use in Event of Mother's Death Not Considered Claimant's Resources

42,575. De La Cruz, In re, (SSA, Office of Hearings & App., June 19, 1987). Claimant represented by Ian Feldman, Paul Aponte, The Legal Aid Society, 953 Southern Blvd., Bronx, NY 10459, (212) 991-4600. [Here reported: (Accession No. 1010081) 42,575A Decision (5pp.); 42,575B Decision (2pp.).]

The Appeals Council has reversed the ALJ's decision, which upheld the denial of claimant's request that an assessment of overpayment against him be rescinded. The ALJ had found that money that had been deposited in a joint bank account that claimant held with his father belonged to claimant and exceeded the applicable resource limit. Claimant argued that the monies in the bank account were not his and had been deposited into the account by various family members to cover medical and funeral expenses for his mother, who was in ill health and not expected to live at the time the deposits were made. As soon as claimant's mother recovered from her illness, his father returned the money to his relatives. The ALJ found that the funds were available to claimant for his support and maintenance and, because there was no written agreement between him and his relatives concerning the use of the funds, it was a resource for SSI eligibility purposes. On appeal, the Appeals Council reversed the ALJ's decision and found that the money in question did not actually belong to claimant, and therefore his assets did not exceed the resource limit. In so ruling, the Council noted that it was significant that the funds were withdrawn from claimant's account and returned to family members prior to the time that the SSA learned of its existence.

WELFARE

Supreme Court to Review Decision on AFDC Publicity Notice Requirements

42,576. Gardebring v. Jenkins, No. 86-978 (U.S. Sup. Ct. filed May 1987). Respondent represented by Laurie Davison, Legal Aid Society of Minneapolis, 323 Fourth Ave. S., Minneapolis, MN 55415, (612) 332-1441. [Here reported: (Accession No. 1010091) 42,576A Brief of Appellant Levine (131pp.); 42,576B Brief of Appellees Slaughter (43pp.); 42,576C Brief of Appellant Jenkins (52pp.); 42,576D Brief of Appellee Levine (25pp.); 42,576E Petition for a Writ of Cert. to the U.S. Court of Appeals for the Eighth Circuit (14pp.); 42,576F Brief of Amici Curiae the States of Hawaii, Louisiana, Arkansas, Michigan, South Dakota, Wisconsin, Missouri, Wyoming, New Jersey, Connecticut, Ohio, Georgia, Idaho, Maryland, Maine, Iowa, Pennsylvania & Tennessee (11pp.); 42,576G Respondent's Brief in Opp'n (26pp.); 42,576H Brief for the United States as Amicus Curiae (26pp.).]

The United States Supreme Court has granted a petition for writ of certiorari in this case, formerly entitled Slaughter v. Levine, which involves a class action by individuals in Minnesota otherwise eligible for AFDC who had been found ineligible under the lump sum rule. Petitioners alleged that the state Department of Human Services (DHS) has failed to provide AFDC recipients adequate advance notice of the lump sum rule as required by 45 C.F.R. § 206.10(a)(2)(i). Initially, the district court, at 598 F. Supp. 1035 (D. Minn. 1984), granted plaintiffs' motion for summary judgment and ordered DHS (1) to send "publicity" notices to AFDC applicants and recipients explaining the mechanics of the lump sum rule, and (2) to send Quern notices to class members informing them that they could apply to DHS for corrective payments. Thereafter, the state moved for reconsideration. In an opinion reported at 605 F. Supp. 1242 (D. Minn. 1985), the court reaffirmed its decision and also ordered HHS, a third-party defendant, to pay the federal share of any benefits paid to class members as a result of the court's decision. Litigation continued, and defendant insisted that the named plaintiff had been overpaid. It proposed to recover the overpayment, which had been received because plaintiff had continued to receive AFDC pending the state administrative appeal decision. Plaintiff filed a motion to enjoin defendant from recovering the overpayment, and the district court denied this motion on eleventh amendment grounds. On appeal, the Eighth Circuit ruled in plaintiffs' favor, finding that defendant had failed to comply with the "publicity" notice requirements of the federal regulations, that the Quern notice was appropriate, and that the eleventh amendment did not prevent the court from enjoining defendant from recovering named plaintiff's overpayment.

Minnesota filed a petition for certiorari, and 21 states joined in filing an amicus brief. The Supreme Court requested the solicitor general's opinion, which supported the state's position. The two questions presented in the petition for certiorari are: (1) does federal law require a state to provide individual written notice detailing the mechanics and precise effect of numerous eligibility requirements for the AFDC program to all applicants and recipients at the time of application, periodically thereafter, and whenever eligibility requirements change; and (2) does a program publicity rule promulgated by HHS delay the implementation of a statutory AFDC change if the state fails to give AFDC recipients advance notice of the change, in those cases in which Congress specified the effective date of the law and neither made its implementation dependent on advance notice of the change nor gave the federal agency authority to delay the effective date?

Supreme Court Holds DEFRA's Sibling Deeming Rule Does Not Violate Fifth Amendment's Due Process or "Takings Clauses"

6986. Bowen v. Gilliard, No. 86-509 (U.S. Sup. Ct. June 25, 1987). Appellees represented by Jane Wettach, East Central Community Legal Services, 5 W. Hargett St., Raleigh, NC 27601, (919) 828-4647; Julius Chambers, Eric Schnapper, Jean Cary, Lucie White. [Here reported: (Accession No. 1010075) 6986Z-10 Opinion (51pp.). Previously reported at 21 CLEARINGHOUSE REV. 186 (June 1987).]

The United States Supreme Court has upheld the consti

tutionality of the Deficit Reduction Act of 1984 (DEFRA), 42 U.S.C. § 602(a)(38), which amended the AFDC program to require families applying for or receiving AFDC to include in the filing unit income of all parents, siblings, or half-siblings living in the same household, including those children for whom child support payments are being made by a noncustodial parent. The effect that the DEFRA amendments had on the AFDC program was (1) to enlarge the filing unit; (2) to require AFDC recipients to assign child support to the state; and (3) to require the agency pay the first $50 per month of child support collected to the AFDC recipient without counting it as income. Under the sibling deeming rule, many family incomes were reduced by the states' collection of child support payments that had formerly gone directly to the family. In response to the enactment of the DEFRA amendments, plaintiff AFDC recipients brought suit against the State of North Carolina and HHS seeking relief on behalf of the class. The district court held that, although North Carolina had properly interpreted section 602(a)(38) by requiring child support income of a co-resident sibling or half-sibling to be included as a family resource, the Act itself was unconstitutional under the due process clause and its equal protection counterpart, as well as the takings clause of the fifth amendment, which provides that private property may not be taken for public use without just compensation. In reversing the district court's constitutional holding, the Court has found that the Act rationally serves both Congress's goal of decreasing federal expenditures and the government's separate interest in distributing benefits among competing needy families in a fair way, and therefore does not violate the due process and equal protection principles of the fifth amendment. The Court has further found that a limited form of "heightened scrutiny" cannot be applied because the statute does not interfere with a family's fundamental right to live in the type of family unit of its choice. Finally, the Court has found that the statute does not violate the fifth amendment's takings clause in that the requirement that an AFDC recipient assign support payments to the state, which then returns the payments to the family for the family's benefit, does not modify a child's interest in the use of the money so dramatically so as to constitute a "taking" of the child's property.

Welfare Department Cannot Automatically Terminate AFDC When Family Receives One Support Payment Exceeding AFDC Payment 38,551. Yelder v. Hornsby, No. 84-T-1271-N (M.D. Ala. July 20, 1987). Plaintiff represented by Lawrence Gardella, Legal Services Corp. of Alabama, 207 Montgomery St., Montgomery, AL 36104-3586, (205) 832-4570. [Here reported: (Accession No. 1010129) 38,551N Order (3pp.); 38,551-O Judgment & Inj. (14pp.). Previously reported as Yelder v. Frazier at 19 CLEARINGHOUSE REV. 323 (July 1985).]

The court has held that the Alabama welfare department cannot automatically terminate a family's AFDC benefits just because the department collects from the absent parent one child support payment that exceeds the family's AFDC monthly payment level by more than $50. Instead, the department must obtain information from the family and other sources to determine whether it is reasonably likely that child support payments will continue to be received in sufficiently large amounts in succeeding months. The court held that, unless the family voluntarily decides to withdraw from the AFDC program, benefits can be terminated only if the department can reasonably expect future child support payments to come regularly and to exceed the AFDC monthly payment by more than $50. In this case, the Department of Human Resources (DHS) terminated named plaintiff's AFDC benefits three times between 1983 and 1984, even though it was apparent with each termination that the absent parent would more than likely not continue, or even be able to continue, with support payments. Although plaintiff was able each time to have her benefits restored, she and her family suffered greatly during the month or more that they had to do without benefits. The court held that the thrust of 45 C.FR. § 233.33(a) is that a state agency must determine a family's continued AFDC eligibility on an individualized basis, considering all relevant and available information about the family. Based on this information, the agency must make a best estimate of the family's future actual income and circumstances. In so ruling, the court stated that the agency may not make this important and critical determination for a family based on assumptions and presumptions divorced from the expected actual income and circumstances for that family. A separate order was entered denying the state's motion to join the U.S. Department of HHS as a party defendant.