chu-drua-cha-on-his-own-behalf-and-on-behalf-of-all-others-similarly , 701 F.2d 750 ( 1983 )

701 F.2d 750

CHU DRUA CHA, on his own behalf and on behalf of all others
similarly situated, Appellant,
v.
Leonard LEVINE, Commissioner of the Minnesota Department of
Public Welfare, the Ramsey County Human Services
Board, and Richard S. Schweiker,
Secretary of Health and Human
Services, Appellees.

No. 82-1997.

United States Court of Appeals,
Eighth Circuit.

March 10, 1983.

Law Offices of Southern Minnesota Regional Legal Services, Inc., Mark A. Bohnhorst, Berry Friesen, St. Paul, Minn., for appellant.

Warren R. Spannaus, Atty. Gen., State of Minn., John M. Burman, Sp. Asst. Atty. Gen., St. Paul, Minn., for appellee Arthur E. Noot.

James M. Rosenbaum, U.S. Atty., by Mary L. Egan, Asst. U.S. Atty., Minneapolis, Minn., Edith S. Marshall, Atty., Dept. of Health and Human Services, Washington, D.C., for appellee Schweiker.

Before ROSS, McMILLIAN and ARNOLD, Circuit Judges.

ORDER

1

The petition for rehearing of 696 F.2d 594 (8th Cir.1982) is denied.

2

The Court has considered appellant's motion for attorneys' fees and appellees' opposition thereto. We hold that appellant is a prevailing party for purposes of preliminary injunctive relief. Although this relief may later be modified or vacated, it represents a substantial measure of success, and the award of attorneys' fees for this phase of the case is appropriate. The time spent and hourly rates requested by counsel for appellant are reasonable, and appellees have not argued to the contrary. Although we could, under 8th Cir.R. 17, remand the matter to the District Court for hearing and decision, there is no need to do so in the present situation, because no issue of fact about the amount of time expended or the reasonable hourly rates is raised. The motion for allowance of attorneys' fees is therefore granted, and an award is made to Southern Minnesota Regional Legal Services, Inc., in the amount of $6,750 for the services of Berry Friesen, Esq., and in the amount of $2,601 for the services of Mark Bohnhorst, Esq.

3

Pursuant to 8th Cir.R. 17, the Clerk of this Court is directed to request the Clerk of the District Court to add this award of attorneys' fees to the mandate, which has already been issued.

4

In addition, costs are allowed in this Court in the amount of $53.10.

5

These awards are made against the Commissioner of the Minnesota Department of Public Welfare and the Ramsey County Community Human Services Board. No award is made against Richard S. Schweiker, Secretary of Health and Human Services. This action is without prejudice to the right of the state and county defendants to claim reimbursement, either administratively or in court, from the United States. This Court intimates no view on whether such reimbursement is appropriate.

6

The Court on its own motion substitutes Leonard Levine, Commissioner of the Minnesota Department of Public Welfare, as a party appellee in place of Arthur E. Noot.

7

It is so ordered.