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HERWEG v. RAY

No. 78-1664.

619 F.2d 1265 (1980)

Elvina M. HERWEG, by her husband and next friend, Darrell E. Herweg, and Darrell E. Herweg, and all others similarly situated, Appellants, v. Robert D. RAY, Individually and in his capacity as Governor of the State of Iowa, and Kevin J. Burns, Individually and in his capacity as Commissioner of the Iowa Department of Social Services, Appellees.

United States Court of Appeals, Eighth Circuit.

Decided March 18, 1980.

Rehearing Denied April 22, 1980.

Attorney(s) appearing for the Case

Gill Deford, National Senior Citizens Law Center, Los Angeles, Cal., for appellants; Neal S. Dudovitz, Los Angeles, Cal., and Robert L. Bray, Legal Services, Corp. of Iowa, Des Moines, Iowa, on brief.

Stephen C. Robinson, Asst. Atty. Gen., Des Moines, Iowa, for appellee; Richard C. Turner, Atty. Gen., Des Moines, Iowa, on brief.

Thomas J. Miller, Atty. Gen., and Stephen C. Robinson, Special Asst. Atty. Gen., Des Moines, Iowa, on supplementary brief.

David R. Smith, Washington, D. C., for amicus curiae, U. S. Dept. of Health, Education and Welfare.

Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY, and McMILLIAN, Circuit Judges.

ORDER

Pursuant to the attached opinion, the judgment of the district court is affirmed by an equally divided court, except that portion relating to the sources of income the state may consider as available to Medicaid applicants and recipients, which is reversed and remanded.

ROSS, Circuit Judge.

Elvina M. Herweg and her husband, Darrell E. Herweg, individually and as representatives of a class, appeal a decision by the district court

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