Sanchez v. Heckler, Civ. A. No. 83-K-2014.

• Decision Date: 15 February 1985
• Docket Number: Civ. A. No. 83-K-2014.
• Citation: 603 F. Supp. 280
• Parties: Joseph J. SANCHEZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Colorado

603 F. Supp. 280

Joseph J. SANCHEZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

Civ. A. No. 83-K-2014.

United States District Court, D. Colorado.

February 15, 1985.

John Whitehouse Cobb, Roper, Lief, Mains & Cobb, Boulder, Colo., for plaintiff.

Robert N. Miller, U.S. Atty., Nancy E. Rice, Asst. U.S. Atty., Denver, Colo., for defendant.

ORDER AWARDING FEES

KANE, District Judge.

Joseph Sanchez is a member of the class seeking payment of social security disability benefits through this action. Although I remanded Mr. Sanchez's case for further administrative action, plaintiff won interim benefits as a direct result of this law suit and ultimately, via the administrative process and also as a direct result of this lawsuit, the relief to which he was entitled—social security disability benefits. As contemplated by the Equal Access to Justice Act, Mr. Sanchez has prevailed in this lawsuit.

Although the defendant objects to an award of fees in this case, the litigation position of the government was not substantially justified. See McGill v. Secretary of H.H.S., 712 F.2d 28, 32 (2d Cir. 1983). Both the relief obtained at the hearing on February 29, 1984 in the nature of interim benefits and the final determination on the merits by the defendant agency after remand were directly obtained as a result of the civil action.

Although a party may not be entitled to fees on an order of remand, if the subsequent agency action is favorable, the party will thereafter be entitled to fees under the EAJA. Trujillo v. Heckler, 582 F.Supp. 701, 709 (D.Colo.1984). It is important to note that I was effectively forced to remand the case because of defendant's failure to procure or develop the administrative record below in a timely manner. I was, therefore, prevented from reversing and awarding benefits — as I would certainly have done. A similar situation resulted in an award of fees in Gross v. Schweiker, 563 F.Supp. 260 (N.D.Ind.1983).

Mr. Sanchez has requested compensation for attorney fees at the rate of $88.50 an hour. Although the EAJA sets a maximum hourly fee rate of $75.00 an hour, it provides for enhanced fees if, inter alia, a showing of inflation is made which justifies a higher fee. The affidavit of Mr. Charles Lief, Esq., shows an increase in the Denver average Consumer Price Index of 18% from the time the EAJA was enacted through December, 1984. A corresponding 18% increase in the $75.00 EAJA amount comes to...