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11/09/76 National Council of v. the Honorable F. David
November 9, 1976
NATIONAL COUNCIL OF COMMUNITY MENTAL HEALTH CENTERS, INC., ET AL
THE HONORABLE F. DAVID MATHEWS, INDIVIDUALLY AND AS SECRETARY OF HEALTH, EDUCATION AND WELFARE, ET AL.;
OF COMMUNITY MENTAL HEALTH CENTERS, INC., ET AL
THE HONORABLE F. DAVID MATHEWS, INDIVIDUALLY AND AS
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JEROME S. WAGSHAL, APPELLANT; NATIONAL COUNCIL
Nos. 75-1335, 75-1353 1976.CDC.223
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action 1223-73).
Tamm, MacKinnon and Robb, Circuit Judges. Opinion for the Court filed by Circuit Judge Tamm.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
This case arises out of a district court order awarding Jerome Wagshal a $65,000 attorney's fee for successfully prosecuting a claim against the Department of Health, Education and Welfare on behalf of the National Council of Community Mental Health Centers . *fn1 The Secretary of HEW appeals from the district court's order that Wagshal's fee be paid out of unexpended federal grant funds. Wagshal also appeals arguing that the district court's reliance on a time basis computation formula instead of a percentage of the recovery formula resulted in an unreasonably low fee award. The NCCMHC argues in support of the district court's award from the unexpended funds as it contends that the court lacked in personam jurisdiction over the individual class members and hence, was unable to charge them with payment of the fee.
Although we agree with the district court's determination of the amount of the fee and with its conclusion that it did not have the power to assess this fee against the individual class members, we find that the court erred in mandating that the attorney's fee be paid out of unexpended federal grant funds. We therefore reverse the judgment of the district court. I. FACTUAL BACKGROUND
The federal grant funds involved here were part of the Congressional appropriations authorized under sections 220-224, 271 of the Community Mental Health Centers Act, 84 Stat. 56 (1970), as amended 42 U.S.C. 2688-2688d, 2688u (Supp. V, 1975). The purpose of these grants is to assist public or non-profit private agencies in meeting the costs of construction of mental health facilities for children and to help pay part of the costs of the professional and technical personnel who operate these facilities. Responsibility for the administration of these grants lies with the Secretary of Health, Education and Welfare.
HEW released the impounded 1973 grants to the individual class members *fn2 after the proceedings on the merits indicated that they had been illegally withheld. A portion of these 1973 grant monies remained unused at the time Wagshal instituted his suit for a fee, almost one year after the conclusion of the litigation on the merits. *fn3 Due to orders entered in the prior proceedings these unexpended funds did not lapse at the ...
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