29,919. Bonilla v. Connecticut Commissioner of Unemployment Compensation (Conn. Super. Ct., Hartford-New Britain Counties, July 31, 1980). Plaintiff represented by Pamela Hershinson, Neighborhood Legal Services, 161 Washington St., Hartford, CT 06106, (203) 278-6020. [Here reported: 29,919A Memo in Support of Plf's Motion for Judgment (12pp.); 29,919B Memo of Decision (2pp.).]

A Connecticut court has ruled that claimant left his employment for cause when he failed to return to work after a Christmas trip to Puerto Rico. Claimant alleged that he failed to return to work after his three-week leave of absence because his wife refused to return to Connecticut with his three children. The court held that claimant had met the requirement of a recent Connecticut Supreme Court precedent that "cause" does not have to be job-related and claimants need only show that they left their employment for reasons which would impel the ordinary reasonable person to leave. The decision denying unemployment benefits was reversed.

State Unemployment Compensation Director Has Discretion to Seek Recoupment; Claimants Entitled to Hearing

29,951. Howard v. New Jersey Board of Review, 137 N.J. Super. 196 (App. Div. 1980). Plf-Appellant represented by Madeline Houston, Passaic County Legal Aid Society, 140 Market St., Paterson, NY 07505, (201) 525-4068. [Here reported: 29,951 A Brief (60pp.); 29,951B Opinion (5pp.).]

A New Jersey appellate court has held that the director of the state unemployment division has discretion as to whether or not to demand a refund of benefits which have been improperly paid. In addition, the court ruled that due process requires that the claimant must be given an opportunity to be heard as to why a refund should not be demanded.

In other action on the case, the court affirmed the decision of the lower court that the vulgar and abusive language used at claimant's place of employment was not so bad as to constitute good cause for leaving.

represented by Stanley Taylor, South Mississippi Legal Services, P.O. Box 1386, Biloxi, MS 39533, (601) 374-4160. [Here reported: 29,862A Decision of Appeals Referee (2pp.).]

The appeals referee ruled that claimant had left her employment with good cause after her 3 p.m. to 11 p.m. work shift was changed to a 5 p.m. to 2 a.m. shift. The referee noted that a review of the testimony showed that claimant's supervisor changed her work schedule after she refused his sexual advances. The agency determination disqualifying her for benefits was reversed.

Timely Oral Request to Appeal Denial of Benefits Made by Dyslexic Claimant Satisfies Filing Requirements

30,057. In re McNamara (N.J. Div. of Unemployment & Disability Insurance, Aug. 14, 1980). Claimant represented by Jim Sacher, Middlesex Legal Services, 78 Carroll Pl., New Brunswick, NJ 08901, (201) 249-7600. [Here reported: 30,057A Decision (2pp.); 30,057B Order to Remand (1p.); 30,057C Decision (2pp.).]

On remand from the Board of Review, the Appeals Tribunal found that claimant, who suffered from dyslexia (a perceptual disorder), had justifiably relied on an unemployment office clerk's inaccurate advice on her appeal rights. The claimant did not file a written appeal until six weeks after receipt of a denial notice. The Tribunal accepted her appeal as timely in light of the fact that she intended to appeal the denial when she appeared at the unemployment office within a few days of the receipt of the notice. Because of the disorder, claimant did not realize that her claim had been denied. On the merits, the Tribunal found that claimant was not disqualified from receiving benefits because her employer could have adjusted her work hours to accommodate a school schedule but instead chose to replace her.

VETERANS/MILITARY

VA's Promulgation of Regulations Is Subject to Judicial Review

Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir. 1980).

The Ninth Circuit joins the Sixth and Eighth Circuits in holding that the Veterans Administration's promulgation of regulations is subject to judicial review. On the merits of the challenge, however, the court held against the plaintiff.

Change to Undesirable Work Hours Constitutes Good Cause for Leaving Employment

29,862. In re Owen (La. App. Tribunal for Office of Employment Security, June 11, 1980). Claimant-Appellant

NOVEMBER 1980

Upgrading of Undesirable Discharge Sought

30,027. In re Hendricks (U.S. Army, Discharge Review Bd., filed Aug. 22, 1980). Petitioner represented by Robert Catz, Thomas Simon, College of Law, Cleveland State Univ.,

Draft Registration Information Available

In late September a Special Supplement to the Discharge Upgrading Newsletter on draft registration was directed to all legal services projects. The supplement was prepared by David Addlestone of the National Veterans Law Center to inform LSPs about the resumption of draft registration. The supplement is intended to assist those offices that desire to do so to provide legal advice to persons who might seek an alternative to induction.

The 12-page supplement contains a description of the current state of draft registration, a general overview of many of the legal issues, information concerning how a person can be prepared for classification and deferment and a list of resources.

Offices that did not receive that mailing can obtain a copy by sending a self-addressed, stamped (28 cents) envelope to:

National Veterans Law Center

ATTN: Keith Snyder 4900 Massachusetts Ave. NW Washington, DC 20016

Cleveland, OH 44115, (216) 687-2525. [Here reported: 30,027A Memo in Support of Application for Discharge Upgrading (39pp.).]

Petitioner, who was drafted into the Army in 1967, has requested a third hearing before the Army Discharge Review Board through which he seeks to have his Undesirable Discharge upgraded to Honorable. Petitioner was not represented by an attorney at the two earlier considerations of his case. In support of his petition, he argues that (1) he did not receive adequate counselling before separation action for unfitness was undertaken against him, (2) the written recommendation initiating his discharge proceeding was materially incorrect, (3) he was denied due process by being accorded ineffective assistance of counsel at the proceeding, and (4) he is entitled to discharge upgrading under the provisions of the Laird drug memoranda.

WELFARE

SSI Recipient's Rent Free Housing in Exchange for Maintenance and Payment of Taxes Constitutes Unearned Income

23,922. Antonioli v. Harris (9th Cir., July 11, 1980). [Here reported: 23,922-I Opinion (5pp.). Previously reported at 12 CLEARINGHOUSE Rev. 439 (Nov. 1978).]

The Ninth Circuit has affirmed a district court decision which reduced an SSI recipient's benefits because he lived rent free in a home owned by his father. In exchange for the housing, the recipient assumed payment of the property tax and expenses for maintenance, which were less than the fair market rental value of the home.

Fifth Circuit Remands Challenge to Texas' AFDC Incapacity Standards to Allow Intervention by New Plaintiff

26,185. Silva v. Vowell (5th Cir., June 26, 1980). Appellee represented by Gerald Garcia, Texas Rural Legal Aid, 305 E. Jackson, Harlingen, TX 78550, (512) 423-3111. [Here reported: 26,185J Opinion (20pp.). Previously reported at 13 CLEARINGHOUSE REV. 1018 (Apr. 1980).]

This class action was initially brought to challenge a Texas AFDC eligibility requirement that disqualified families if the father was capable of light work. The action was later broadened to attack other disability requirements, including the requirement that the father be disabled for 60 days or more. (Federal regulations specify only a 30-day requirement.) As a result of this action, the Texas AFDC Handbook was revised, mooting all claims except the challenge to the 60-day requirement. The district court ordered notice to be sent to all applicants denied benefits because of the light work requirement. The court also granted summary judgment for the plaintiffs, invalidating the 60day requirement, and certified a class of all Texas residents who had been denied AFDC benefits because of the improper disability standards, including both the light work and 60day requirements. The defendants appealed.

The Fifth Circuit has held that plaintiffs raised a substantial equal protection claim sufficient to support the district court's exercise of pendent jurisdiction. The court acknowledged that under Rosado v. Wyman, 397 U.S. 397 (1970), the district court had discretion to exercise pendent jurisdiction over the statutory challenge to the 60-day requirement after the constitutional challenge to the light work requirement had been mooted.

However, the Fifth Circuit held that the district court should not have proceeded to the merits of the 60-day challenge because all of the named plaintiffs had been denied benefits on the basis of the light work requirement and the class was not certified until after that challenge had become moot. The court found that the defendants' conduct was largely responsible for the case being treated as a class action and remanded so that a plaintiff who had been directly injured by the 60-day requirement could intervene.

The Fifth Circuit held that the cost of mailing notice (to be borne by defendants) was ancillary to prospective relief and did not violate the eleventh amendment, noting that it was the character of the expense and not the amount that was determinative.

One judge concurred in part, but dissented from the notice aspects of the decision, arguing that the court had no power to grant relief once the claim became moot.

Sixth Circuit Holds That Child's Portion of Veteran's Pension Is Not Attributable as Income to Parent for Purposes of SSI Eligibility

25,525. Webster v. Califano (6th Cir., July 10, 1980). PlfAppellee represented by Janet Eaton, Legal Aid Society of

CLEARINGHOUSE REVIEW

Cincinnati, 901 Elm St., Cincinnati, OH 45202, (513) 2419400. [Here reported: 25,525L Order (2pp.); 25,525M Motion for Clarification of Order (2pp.). Previously reported at 12 CLEARINGHOUSE REV. 757 (Feb. 1979).]

The Sixth Circuit has held that the child's portion of a veteran's surviving spouse's pension is not attributable as income to the parent for purposes of SSI eligibility. The court found that the Veterans Administration had allocated a portion of the pension as income to the child, not the parent, even though all of the benefits were included in one check in the mother's name. (The court's decision contains an inconsistency in the amount of income attributable to the mother and a motion for clarification of the order has been filed.)

Mother Is Entitled to Hearing to Prove That Husband Is Not Natural Father of Her Children for Purposes of AFDC Eligibility

29,232. B. v. Holder (M.D. Ala., July 14, 1980). Plaintiff represented by Larry Gardella, Legal Services Corp. of Alabama, 207 Montgomery St., Montgomery, AL 36104, (205) 832-4570; Floyd Sherrod. [Here reported: 29,232D Memo in Support of Fed. Defs' Motion to Dismiss (17pp.); 29,232E Memo in Support of Prelim. & Final Relief (12pp.); 29,232F Plf's Reply Memorandum (11pp.); 29,232G Fed. Defs' Response to Plf's Motion for Prelim. & Permanent Inj. (11pp.); 29,232H 3rd Amendment to Complaint (3pp.); 29,232-I Memo in Support of Fed. Defs' Motion to Dismiss (11pp.); 29,232J Plf's Reply Memo on 5 U.S.C. §551 (4pp.); 29,232K Plf's Proposed Findings & Conclusions (7pp.); 29,232L Fed. Defs' Proposed Findings & Conclusions (6pp.); 29,232M Memo Opinion (11pp.); 29,232N Judgment & Order (2pp.). Previously reported at 14 CLEaringhouse Rev. 398 (July 1980).]

This action was brought by a welfare recipient to challenge the denial of AFDC benefits to her two minor children on the grounds that both parents of the children were living in the household. Although both children were born after plaintiff and her husband married, she alleged that her husband was not the father of either child. When her husband was released from jail, her AFDC benefits were terminated. Plaintiff requested an administrative hearing in order to prove that her husband was not the parent of either child, but that request was denied.

The district court has held that the mother is entitled to an administrative hearing at which she can attempt to overcome the Alabama presumption that children born during wedlock are the children of the mother's husband. The hearing officer is to be guided by the evidentiary requirements of Leonard v. Leonard, 360 So.2d 710 (Ala. 1978). The court ordered benefits to continue unless there is an administrative or judicial declaration that the husband is the father of the children.

The court noted that under 45 C.F.R. §233.90(a) the children could be denied benefits only if the mother's husband was the natural father, because he had not adopted the children and in Alabama a stepfather has no legal duty to

NOVEMBER 1980

support stepchildren. Therefore, the court found that where the mother asserts that the children have no natural father in the household, the agency cannot avoid making a determination as to that fact. The court noted that state agencies make thousands of administrative determinations in determining eligibility for benefits, and because of the Alabama presumption, a determination of paternity should be easier than most. Defendants had sought to require plaintiff to obtain a judicial determination of paternity.

SSI Recipient Who Pays Reduced Rent for Shelter Does Not Lose Benefits if Reduction Is Based on Benefit to Landlord

29,998. Hix v. Harris (N.D. Cal., May 5, 1980). [Here reported: 29,998A Judgment & Order (4pp.).]

The district court has reversed the final decision of HEW to terminate a 67-year-old widow's SSI benefits because it was determined that she was paying less than the current market value for shelter. Claimant lives alone in a home owned by her son. Although similar premises would rent for $300 per month, claimant pays only $275. HEW found that claimant was receiving $75 in in-kind income by virtue of the reduced rent.

The court held that claimant was entitled to receive the SSI benefits even though she paid reduced rent. The court relied on Social Security Claims Manual Section 12355(h) which provides that SSI recipients may enter into reduced rent agreements when the basis for the reduction is a benefit provided to the landlord. Claimant takes phone messages for her son, collects his mail, admits maintenance personnel who are renovating the house and maintains the yard.

Unmarried Couple Seeks Restoration of SSI Payments at Individual Rates

29,711. Quarles v. Harris (D. D.C., filed July 2, 1980). Plaintiffs represented by Michael Schuster, Jan May, Legal Counsel for the Elderly, 1016 16th St. NW, Washington, DC 20036, (202) 234-0970. [Here reported: 29,711A Appeals Council Brief (16pp.); 29,711B Complaint (8pp.); 29,711C Amended Complaint (9pp.).]

Plaintiffs are seeking injunctive and declaratory relief from HEW's decision that they were improperly receiving SSI benefits at individual rates because they were "holding out" as husband and wife. HEW seeks the return of alleged overpayments. Plaintiffs argue that although they share an apartment, they should not be receiving payments as a couple because they have never held themselves out as husband and wife.

The female plaintiff is also challenging HEW's decision that she is responsible for overpayments erroneously made to her as an individual when she was living with her husband. Plaintiff argues that she should not be liable for overpayments received because the error was not hers; she never misrepresented her position to welfare officials and believed

Suit Challenges Florida's Practice of Denying AFDC Benefits to Parents Who Are Capable of Caring for Their Children Regardless of Inability to Support Them

29,938. Chaffin v. Taylor (M.D. Fla., filed July 28, 1980). Plaintiff represented by Mark Greenberg, Wanda Fishalow (law clerk), Jacksonville Area Legal Aid, 2070 N. Liberty St., Jacksonville, FL 32206, (904) 353-3636; Michael Chielens, Henry Freedman. [Here reported: 29,938A Complaint (10pp.); 29,938B Plf's Memo for TRO & Prelim. Inj. (15pp.); 29,938C Stipulation to Continue Assistance (1p.).]

Plaintiffs seek declaratory and injunctive relief from Florida's administration of the AFDC program. Plaintiffs claim that the state is violating equal protection and the Social Security Act in that it arbitrarily denies them benefits without making any determination of their ability to support their children.

The named plaintiff alleges that she is an epileptic who has not worked in seven years and that her only source of income is AFDC. She contends that she has been given notice that her benefits will be terminated because she has been adjudged capable of caring for her children, although no consideration was given as to whether she is capable of supporting her children. Plaintiff alleges that, according to federal law, a household in which one parent has an incapacity which substantially reduces or eliminates the parent's ability to support or care for an otherwise eligible child is eligible to receive AFDC benefits. Plaintiff argues that she should remain eligible for benefits until she is adjudged capable of supporting her children. Defendant has agreed that plaintiff shall remain eligible until a final order is entered.

Standards for Evaluating Children's Disabilities in Determining SSI Eligibility Challenged

30,031. Powell v. Harris (M.D. Fla., filed May 20, 1980). Plaintiffs represented by Amy Hirsch, James Hardy, Jacksonville Area Legal Aid, 604 Hogan St., Jacksonville, FL 32202, (904) 356-8371. [Here reported: 30,031A Complaint (5pp.); 30,031B Plf's Request for Admissions (3pp.); 30,031C Plf's Interrogatory (2pp.).]

This is a nationwide class action challenging the standard for evaluating children's disabilities in determining eligibility for SSI disabled child's benefits. The Social

Six-Month Residency Requirement for General Assistance Benefits Challenged

30,010. Barnett v. Fulton County (N.D. Ga., filed July 10, 1980). Plaintiffs represented by Deborah Ebel, Barbara Twine, Altanta Legal Aid Society, 1131 Capitol Ave., SW, Atlanta, GA 30315, (404) 524-2681. [Here reported: 30,010A Complaint (13pp.).]

This class action challenges the six-month durational residency requirement of the Fulton County, Georgia General Assistance program. Plaintiffs contend that the residency requirement violates their right to equal protection under the fourteenth amendment because it creates an invidious classification that impinges on the right to travel by denying new county residents the basic necessities of life. Plaintiffs seek declaratory and injunctive relief.

Preliminary Injunction Issued in Challenge to Policy of Considering Work-Study Money as Earned Income for AFDC Purposes

30,049. Burke v. Pratt (D. Mass., Aug. 7, 1980). Plaintiffs represented by Lucy Williams, Massachusetts Law Reform Institute, 2 Park Square, Boston, MA 02116, (617) 482-0890; Emily Starr. [Here reported: 30,049A Complaint (20pp.); 30,049B Answer (6pp.); 30,049C Memo in Support of Motion for TRO & Prelim. Inj. (42pp.); 30,049D Def's Memo in Opp'n to Plfs' Motion for Prelim. Inj. (40pp.); 30,049E Reply Memo (14pp.); 30,049F Memo in Support of Class Certification (13pp.); 30,049G Order (2pp.); 30,049H Order Certifying Class & Expanding TRO (2pp.); 30,049-I Memo & Order (17pp.).]

Plaintiffs in this class action challenge the policy of the Department of Public Welfare of considering work-study money as earned income for purposes of computing AFDC benefits. Plaintiffs allege that the policy violates section 507 of the Higher Education Act of 1965, Title IV of the Social Security Act, 45 C.F.R. §§233.20 et seq., the Work Study Program and the due process and equal protection clauses of the fourteenth amendment. The court has entered a preliminary injunction enjoining the department from failing to disregard fully work-study money when calculating AFDC benefits.

CLEARINGHOUSE REVIEW

AFDC Recipients Challenge Practice of Limiting WIN Training Programs to One Year

29,602. Hoffman v. Hans (D. Mass., filed June 12, 1980). Plaintiffs represented by Peter Anderson, Greater Boston Legal Services, 85 Devonshire St., Boston, MA 02109, (617) 367-2880; Monica Allison, Sarah Anderson, Neil Onerheim, Lucy Williams. [Here reported: 29,602A Complaint (15pp.).]

AFDC recipients who are mandatory registrants in the WIN program allege violations of 42 U.S.C. §§630 and 636(a) and due process because of the defendants' refusal to allow them to participate in educational and training programs for more than one year. The recipients contend that the defendants' practices violate the purposes of WIN and the congressional mandate for meaningful WIN training. Plaintiffs also claim that federal and state defendants have impeded their ability to reach employment goals which the WIN officials have set for them. Additionally, the recipients contend that the state defendants failed to request exemptions from the one-year training limitation pursuant to 29 C.F.R. §59.35(c) and 45 C.F.R. §224.35(c). Plaintiffs seek injunctive and declaratory relief.

Suit Charges Pennsylvania with Unlawful Administration of Energy Crisis Assistance Program

29,647. Burton v. Thornburg (E.D. Pa., June 30, 1980). Plaintiffs represented by Steven Hershey, Janet Parrish, Community Legal Services, Sylvania House, Juniper & Locust Sts., Philadelphia, PA 19107, (215) 893-5300. [Here reported: 29,647A Complaint (16pp.); 29,647B Memo in Support of Motion for TRO (4pp.); 29,647C TRO (1p.).]

In this section 1983 class action, the plaintiffs allege due process violations by the Pennsylvania welfare department in the administration of the Energy Crisis Assistance Program, 45 C.F.R. §§1061.70 et seq. They claim that the failure of the department to provide written explanations for the denial of benefits and notice of the applicants' appeal rights is an abuse of administrative discretion and violates due process and federal statutory law. Additionally, the applicants contend that the department unlawfully refused to deliver services in a timely manner. An equal protection claim was also filed. The applicants seek declaratory and injunctive relief in addition to a request to proceed in forma pauperis.

Shortly after the complaint was filed, a TRO was issued freezing the funds. A partial settlement has been reached under which crisis assistance funds will be paid to eligible Philadelphia recipients.

SSI Benefits Sought Back to Date of Oral Inquiry

30,041. Vernosoni v. Harris (D. R.I., filed 1980). Plaintiff represented by William Rutzick, Rhode Island Legal Services, 77 Dorrance St., Providence, RI 02903, (401) 274-2652. [Here reported: 30,041 A Memo in Support of Plf's Motion

NOVEMBER 1980

for Summary Judgment (16pp.).]

Plaintiff was incapacitated for several years. During that time, her mother called the Social Security office to inquire whether plaintiff was eligible for SSI benefits. The mother was repeatedly informed that the daughter would have to come into the office and apply in person for benefits. The mother was not told that a representative could be sent to plaintiff's home or that an application for benefits could be taken over the phone.

Plaintiff subsequently applied for benefits but was denied them because she would not be disabled for a period of 12 months or more from the date of her application. She has sought judicial review and submitted a brief on the issue of whether she should be deemed to have applied as of the date her mother telephoned the Social Security office and was given misleading information regarding application procedures.

Illegitimate Children Residing with Father or Father's Relative Are Entitled to AFDC

27,150. Smith v. Puett (M.D. Tenn., Aug. 11, 1980). Petitioners represented by William Rold, James Lafevor, University of Tennessee Legal Clinic, 502 S. Gay St., Knoxville, TN 37902, (615) 974-5241. [Here reported: 27,150-0 Memo & Order (23pp.). Previously reported at 13 CLEARINGHOUSE REV. 413 (Sept. 1979).]

The court ruled that a regulation of the Tennessee Department of Human Services which denies AFDC to illegitimate children living with their putative father or their father's relatives unless the child has been legitimated conflicts with state statutes and section 606(a) of the Social Security Act. HEW had urged the court to define the term "father" as the "legal father" for purposes of AFDC eligibility and to insert implicitly the term "maternal" before each of the "specified relatives." The court found that to interpret the statute in such a manner would be to impose a more restrictive eligibility condition for receiving AFDC than those set out in the statute. Thus the court found that prior adjudication of paternity is not a necessary precondition for AFDC eligibility.

Furthermore, the court found that Congress did not intend the Act to differentiate between potential beneficiaries equally in need of the program based upon whether they were illegitimate children "living with" their father and his relatives as opposed to "living with" their mother or her relatives. The court stated that such a distinction not only inserts an additional eligibility requirement, it would also conflict in several significant respects with the overriding goal of providing the best available care within the family unit for all dependent children. The court found that plaintiffs were entitled to permanent injunctive relief with regard to the application of the regulations and HEW's policies in the administering of the Tennessee AFDC program but reserved ruling on the class certification and retroactive benefits. The state defendant was assessed attorneys' fees; however, the court recognized that HEW could not be assessed fees pursuant to 28 U.S.C.A. §2412 (1978).