876 F2d 896 Henderson v. W Sullivan

876 F.2d 896

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Barbara A. HENDERSON, Plaintiff-Appellee,
Louis W. SULLIVAN, Secretary of Health and Human Services,

No. 87-1859.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1989.
Decided June 7, 1989.

Before WALLACE and NOONAN, Circuit Judges, and THOMAS ZILLY,* District Judge.


The Secretary of Health and Human Services (Secretary) appeals from the district court's order of February 2, 1987, awarding plaintiff's counsel attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412, at an hourly rate in excess of the $75 per hour statutory ceiling. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 2412 and 42 U.S.C. Sec. 405(g). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Subsequent to the ruling by the district court, the Supreme Court handed down its decision in Pierce v. Underwood, 108 S.Ct. 2541, 2553-54 (1988), reversing our earlier decision defining "special factors." See Underwood v. Pierce, 761 F.2d 1342, 1347 (9th Cir.1985). The district court relied on our earlier precedent in determining that "special factors" warranted an award in excess of $75 per hour. Therefore, we vacate and remand for reconsideration under the Supreme Court decision and our subsequent opinion in Pirus v. Bowen, 869 F.2d 536, 540-42 (9th Cir.1989). We do not foreclose the district court from considering any factors, whether raised before or not, in its assessment of the proper rule to be applied pursuant to these cases.


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Honorable Thomas Zilly, United States District Judge, Western District of Washington, sitting by designation