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Written by Jack Keeney

Mar 07

2014

Pro Bono Attorney Successfully Defends Client on Appeal

Schwartz Craig Photo 54376-9595

A disabled veteran who recently lost his federal job will continue to receive the unemployment insurance (UI) benefits to which he is entitled as a
result of the efforts of his Legal Aid pro bono attorney, Craig Schwartz, a D.C.-based third-year associate at Pepper Hamilton LLP. The award of UI benefits had been appealed by his federal employer agency. Craig’s appellate victory allows his client full access to the much-needed safety net funds that he had been awarded when the client had represented himself pro se before the Office of Administrative Hearings. Read more →

Aug 26

2013

Recent Appellate Family Law Decision Clarifies “Weighty Consideration” Standard and Invites Reconsideration of Non-Appealability of a Change in Permanency Goal

Late last week, the D.C. Court of Appeals issued a landmark decision in In re Ta.L., et al., Nos. 11-FS-1217 (D.C. Aug. 22, 2013), a contested adoption case in which Legal Aid submitted an influential amicus brief. At issue was the constitutional “weighty consideration” given to the biological parents’ preference for the placement of their children. In this case, the biological parents supported adoption by the children’s aunt, and the Court was called upon to weigh that preference against a competing adoption petition by the foster family with whom the children had been placed for the three years during the pendency of the litigation.

The case involved eight consolidated appeals. The Court reversed and remanded the Superior Court’s order granting the adoption petition of the foster family. It held that the lower court erred in it application of “weighty consideration” to the competing adoption petition of the biological parents’ preferred caregiver (the aunt).  There was no evidence that the trial court actually did so, and in fact the evidence and the trial court’s findings established that the aunt was a fit caregiver too.  The Court provided clarity on a number of legal principles.  Read more →

Sep 17

2012

Legal Aid in the Court of Appeals

Jack Keeney, Director of the Barbara McDowell Appellate Advocay Project

What to do? Your employer, effective immediately, has just cut your hours (and thus your pay) by 25% from full time to part time, while also raising your employee contribution for health benefits to an additional $346 per month. You believe that you can no longer make ends meet for yourself and your two children. Let’s say you resign to engage in a full-time search for a new job rather than continue part-time at reduced pay and higher out-of-pocket costs. Having resigned due to the substantial reduction in wages, will you get unemployment benefits? Not necessarily was last month’s answer from the Court of Appeals, in a case where Legal Aid represented the former employee.

In Consumer Action Network v. Frances Tielman, the Court of Appeals construed the District’s unemployment compensation statute and regulations to hold for the first time (and correctly so) that a 25% wage cut was a substantial reduction in wages. But it further held that such a substantial reduction only “may”, and does not by itself, constitute good cause to resign and thus be eligible for unemployment compensation. The Court emphasized that the only statutory or regulatory mention of reduced compensation and eligibility for unemployment compensation stated that a “minor reduction in wages” is not good cause. But the Court found no inference from this exclusion that a non-minor reduction was good cause. The Court concluded instead that without greater legislative or regulatory specificity, exclusion of minor reduction in wages did not establish or necessarily intend eligibility for all instances of substantial reduction in wages, including the 25% cutback by this employer. Rather, it was a case by case determination of whether the resignation was what a reasonable and prudent person would do under those financial circumstances. It remanded for further financial details from the claimant.

While the rules of statutory interpretation are what they are, neither those rules nor the omission of parallel language of automatic inclusion is any sure indication that the District of Columbia Council actually intended that a case-by-case determination be required in every non-minor wage-cut case. The explicit exclusion of only the “minor reduction in wages” from good cause obviously permits coverage in some circumstances as the Court found. But does it really intend to exclude coverage in other circumstances of non-minor wage cuts?

Context sheds some light. In the unemployment benefits context, the District has enacted seven mandatory exclusions from good cause for eligibility and six automatic inclusions that satisfy good cause. The current six mandatory definitions of “reasons considered good cause” include racial and sexual discrimination and harassment and other workplace conditions. For none of the seven mandatory exclusions is there a parallel automatic inclusion relating to what is not covered by the topical exclusion. So, it is neither surprising nor inconsistent with the statutory structure chosen by the District of Columbia Council that there is no mandatory inclusion for the parallel situation of “substantial” reduction of wages   It would be unusual having excluded only “minor” reductions if the Council did not intend to include as good cause all instances of substantial reduction in wages because the purpose of the unemployment statute is to be a lifeline to those whose work conditions have changed through no fault of their own.

The District of Columbia Council could easily and definitively resolve this concern through an amendment that adds a new seventh automatic inclusion for “substantial reduction in wages”. The alternative, now required by the Court of Appeals, is a case-by-case inquiry into financial details of the impact on claimants, mostly pro se, who may or may not have financial records of household expenses to document how the 25% wage reduction and increased costs of benefits has impacted them so severely that they resigned to do a full-time search for a new job. While Court’s the opinion disclaims any judicial requirement of “detailed expenses”, it nevertheless lists particular expenses such as “student loans, rent, utilities, food, health insurance and child care.” Such searching inquiries raise barriers that are inconsistent with the broad humanitarian purposes of unemployment compensation.

Further legislative and regulatory attention to the broader problem of substantial wage cutbacks triggering resignations may also be justified to answer the Court of Appeals’ request in its decision for further information not only from claimants but from the District’s Department of Employment Services “to furnish information about the availability of partial unemployment compensation and share work programs in the District of Columbia. . . .” That the Court does not know this information makes it unlikely that an individual claimant, pro se or otherwise, would know this information before deciding whether or not to resign after a substantial wage cutback to pursue a full-time job search. Whether DOES can and should do more to implement Council intent is an appropriate inquiry.

Oct 21

2011

Legal Aid In The Court Of Appeals

Jack Keeney, Director, Barbara McDowell Appellate Project

For the past eight months, it has been my privilege to serve as the Director of the Barbara McDowell Appellate Advocacy Project at Legal Aid. Named after its founder who passed away much too young at age 56, the Project has a unique mission at Legal Aid: to identify and obtain appellate relief on issues of systemic importance affecting the substantial community of persons in poverty in the District. The range of issues the Project handles is broad, as the 2011 appellate docket includes matters involving tenant rights, paternity and support, attorneys’ fees, medical insurance in emergency room situations, and many others.

Surprisingly to me and probably to you too, my October appellate focus has been almost exclusively on unemployment insurance (or “UI”) benefits for eligible workers between jobs. I have filed three briefs this month, am drafting a fourth, and argued yet another in the Court of Appeals earlier this week – all about unemployment insurance. This resurgence of litigation provides us a unique opportunity to emphasize that both the District of Columbia Council and the courts have been explicit that the unemployment compensation statute should be construed liberally whenever appropriate to minimize the economic burden of unemployment. And that is as it should be. Unemployment can happen to you, to me, to anyone. This humanitarian safety net of unemployment insurance lends a helping hand to tide over the temporary dislocation and delays in a job search in a depressed economy.

Moreover, the political consensus supporting unemployment insurance is nonpartisan and near-unanimous. This is particularly true in the current economic crisis in the District, where unemployment rates hover above 10% and in some wards above 30%. Given the weak economy and jobs market, unemployment insurance is perhaps more important than ever, and our obligation as a legal services organization representing persons living in or on the brink of poverty is to make sure that individuals entitled to this critical safety-net benefit are not denied access to it. For that reason, as this blog recently reported, Legal Aid is undertaking some new initiatives this fall to help initial claimants for such assistance.

While the unusual spike in the number of UI cases on Legal Aid’s appellate docket this month is likely another consequence of the economic downturn, as even non-profit employers appeal agency awards of unemployment benefits to their former employees, the event does provide us occasion to highlight the difference that such benefits can mean for those who may find themselves out of a job and rely on unemployment insurance to make ends meet. The vast majority of these individuals typically go through the entire claims process unrepresented, even if their appeal reaches the highest court in the District. For a handful of claimants, however, that’s not the case this month, as Legal Aid is assisting them through the Barbara McDowell Appellate Advocacy Project.

May 06

2011

Legal Aid Encourages the D.C. Court of Appeals to Update the Suggested Pro Bono Financial Contribution for D.C. Attorneys

Jack Keeney, Director, Barbara McDowell Appellate Project

On April 29, 2011, Legal Aid submitted comments in support of the D.C. Bar’s proposed change to Comment [5] of Rule 6.1 of the District of Columbia Rules of Professional Conduct, which would raise D.C.-licensed attorneys’ recommended pro bono financial contribution from $400 to $750.

This change would replace an outdated suggested contribution from the late 1990s with a recommendation that is more representative of current demand for legal services and the cost of providing those services. In the last decade and a half, unmet legal needs have continued to outstrip the available resources, even as legal compensation has increased at or above the level of inflation. 

The proposed amendment has the potential to substantially improve service providers’ ability to meet this vast need and, for reasons discussed in the comments, would not impose any onerous burdens upon members of the Bar. 

As a past president of the D.C. Bar, I am proud of the Bar for proposing this important and much needed change in this time of deep financial crisis for legal service providers and their impoverished clients.