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Decker v. Berryhill

United States Court of Appeals, Ninth Circuit

May 9, 2017

Kim Dana Decker, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued and Submitted October 3, 2016 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding D.C. No. 6:11-cv-06344-HU

          Jeffrey H. Baird (argued), Dellert Baird Law Office, Seattle, Washington; Alan Stuart Graf, Alan Stuart Graf PC, Floyd, Virginia; for Plaintiff-Appellant.

          Jeffrey Eric Staples (argued) and Nicole Jabaily, Assistant Regional Counsel; David Morado, Regional Chief Counsel, Seattle Region X; Office of the General Counsel, Social Security Administration, Seattle, Washington; Adrian Lee Brown, Assistant United States Attorney, United States Attorney's Office, Seattle, Washington; for Defendant-Appellee.

          Before: Richard R. Clifton, Mary H. Murguia, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Equal Access to Justice Act / Attorney Fees

         The panel affirmed the district court's denial of plaintiff's application for attorney fees under the Equal Access to Justice Act ("EAJA") based on the determination that the Commissioner of Social Security's litigation position was substantially justified.

         Plaintiff successfully challenged the Commissioner's denial of plaintiff's application for disability benefits and obtained a remand of her claim to the agency for further consideration.

         The panel held that the district court did not abuse its discretion in determining that the Commissioner's position was substantially justified because the Commissioner's opposition to remand of the claim on the merits was reasonable, even though it turned out to be unsuccessful. The panel noted that plaintiff's new evidence submitted to the Appeals Council, though sufficient in the end to persuade the district court to remand the case, did not make that the only reasonable result.

          OPINION

          CLIFTON, Circuit Judge.

         Kim Dana Decker appeals the district court's denial of her application for attorney fees. In earlier proceedings in the district court, Decker successfully challenged the Commissioner's denial of her application for disability benefits and obtained a remand of her claim to the agency for further consideration. The district court denied her application pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for reimbursement of the attorney fees she incurred in litigating her case, however, because it determined that the Commissioner's litigation position was substantially justified. That conclusion precludes a fee award under the EAJA. Id. § 2412(d)(1)(A).

         This is one of two cases before this panel presenting the same question arising out of similar procedural histories. In each case an Administrative Law Judge (ALJ) denied benefits to a claimant, the claimant sought review by the Social Security Appeals Council and submitted new evidence in support of the claim, the Appeals Council declined to review the denial of benefits but incorporated the new evidence into the administrative record, the claimant filed an action in district court to challenge the denial, and the district court subsequently remanded the case, over the Commissioner's objection, to the ALJ for further proceedings in light of the new evidence. Each of the two claimants at that point sought an award of fees under the EAJA. The district court denied the request for fees in both cases.

         In our opinion in the other case, Gardner v. Berryhill, F.3d___, No. 14-35164 (9th Cir. May 9, 2017), filed concurrently with this opinion, we concluded that the Commissioner's position was not substantially justified because our precedent clearly required remand of the merits claim to the ALJ for further consideration. Even though the Commissioner's opposition to Gardner's disability claim might, in the end, be justified, the opposition before the district court to remand for further proceedings was not substantially justified because remand was "a foregone conclusion." Id. at ...


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