FILED
United States Court of Appeals
Tenth Circuit
July 23, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JERRY L. PRITCHETT,
Plaintiff-Appellant,
v. No. 08-5004
(D.C. No. 4:05-CV-00081-FHM)
MICHAEL J. ASTRUE, (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.
Plaintiff-appellant Jerry L. Pritchett appeals the district court’s denial of
his motion for attorney fees under 28 U.S.C. § 2412(d) (the Equal Access to
Justice Act or EAJA). Because the district court did not abuse its discretion in
refusing to award fees, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In the underlying case Mr. Pritchett appealed the district court’s affirmance
of the Commissioner’s denial of his applications for social security disability
insurance benefits and supplemental security income. This court initially
affirmed, Pritchett v. Barnhart, No. 06-5130, 2007 WL 102983 (10th Cir. Jan. 17,
2007), but later granted rehearing, withdrew the affirmance, and reversed in part
and remanded, Pritchett v. Astrue, 220 F. App’x 790, 791 (10th Cir. 2007). In
partially granting rehearing, we instructed the district court to remand to the
administrative law judge (ALJ) “to address the apparent conflict between
plaintiff’s inability to perform more than simple and repetitive tasks and the
level-three reasoning required by the job [of self-service-store attendant]
identified for him by the vocational expert.” Id. at 793 (citing Hackett v.
Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (Hackett I)).
Because Mr. Pritchett obtained a district-court remand to the Commissioner
under sentence four of 42 U.S.C. § 405(g), he is a prevailing party for EAJA
purposes. Hackett v. Barnhart, 475 F.3d 1166, 1168 (10th Cir. 2007)
(Hackett II). He is therefore “entitled to recover reasonable attorney fees from
the United States unless the court finds that the position of the United States was
substantially justified[,]” id. (internal quotation marks omitted), or there are
“special circumstances that make an award of fees unjust[,]” id. at 1172 (internal
quotation marks omitted). Because the Commissioner does not make the latter
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argument, “[t]he only dispute in this appeal is whether the Commissioner’s
position was substantially justified.” Id.
In denying the fee motion, the magistrate judge before whom the parties
agreed to proceed concluded that the Commissioner’s position both at the agency
level and at the litigation level was substantially justified. We agree.
The Commissioner has the burden of demonstrating that his position was
substantially justified, a test that, in this circuit, means his position was
reasonable in law and in fact and thus can be “justified to a degree that could
satisfy a reasonable person.” Id. (internal quotation marks omitted). Even though
the Commissioner’s position turns out to be incorrect, it can still be justified. Id.
Both the Commissioner’s prelitigation and litigation positions must have had
reasonable bases in fact and law to be considered substantially justified.
Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992).
“We review the district court’s determination of whether the government’s
position was substantially justified for abuse of discretion.” Gilbert v. Shalala,
45 F.3d 1391, 1394 (10th Cir. 1995). “An abuse of discretion occurs when the
district court bases its ruling on an erroneous conclusion of law or relies on
clearly erroneous fact findings.” Hackett II, 475 F.3d at 1172 (internal quotation
marks omitted).
As mentioned above, the Commissioner’s decision was reversed based on
Hackett I because the ALJ had not reconciled the seeming inconsistency between
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his finding that Mr. Pritchett was limited to simple, repetitive, and routine tasks,
and his further finding that Mr. Pritchett could also do the job of
convenience-store attendant, a position that requires a reasoning level of three,
defined as the ability to “‘[a]pply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form[, and d]eal with
problems involving several concrete variables in or from standardized
situations.’” Hackett I, 395 F.3d at 1176 (quoting U.S. Dep’t of Labor,
Employment & Training Admin., Dictionary of Occupational Titles, Vol. II at
1011 (4th ed. 1991)). Hackett I, however, was not announced until after the
ALJ’s decision in this case, and a position contrary to Hackett I was not
unreasonable. See Hackett II, 475 F.3d at 1173 (Commissioner’s losing
arguments on appeal in Hackett I “were quite reasonable”). Accordingly, at least
for the prelitigation phase, we cannot say that the position of the Commissioner
was substantially unjustified.
Mr. Pritchett also urges us to find that the position of the Commissioner
during litigation was substantially unjustified. Again, we disagree. In both the
district court and in this court on appeal, Mr. Pritchett raised the Hackett issue in
only the most casual fashion. In his opening brief on the merits in the district
court, the sum of Mr. Pritchett’s relevant argument is the following: “The
reasoning level required by this job is more than simple, repetitive, and routine as
in the hypothetical and RFC. See Hackett v. Barnhart, 395 F.3d 1168, 1176
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(10th Cir. 2005).” Aplt. App. Vol. I at 18 (citation omitted). No mention of the
issue appears in Mr. Pritchett’s reply brief in the district court.
Similarly, on appeal to this court Mr. Pritchett’s entire argument appeared
on page 38 of a 40-page opening brief and was limited to two and
one-half sentences:
A RFC for simple, routine tasks contemplates a reasoning ability of
level 1. Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir.
2005). The job of sales attendant requires a reasoning ability of level
3, which is far in excess of that required for simple, repetitive and
routine work. Id. The sales attendant job is performed in a
moderately noisy environment, requires the use of fine vision, and
requires a reasoning level of 3, all of which are prohibited by the
specific limitations in the ALJ’s hypothetical and RFC.
Aplt. App. Vol. I at 115. Mr. Pritchett made a slightly longer four-sentence
argument in his reply brief. Id. at 279-80. In this EAJA appeal Mr. Pritchett
quotes the arguments made by both sides in their merits briefs, but he makes no
argument why the Commissioner’s position was substantially unjustified.
Opening Br. at 16-21.
Although the Commissioner did respond to the Hackett argument, both at
the district court level and on appeal, he devoted about as much time to the issue
as did Mr. Pritchett. That is: not much. See Aplt. App. Vol. I at 45 (Aplee.
Resp. Br. in D. Ct.); id. at 254, 256-57 (Aplee. Br. on Appeal). Until
Mr. Pritchett filed his petition for rehearing, the Hackett issue was so poorly
developed in Mr. Pritchett’s briefs that the Commissioner was substantially
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justified in advancing a similarly abbreviated response. Moreover, because of the
skimpy presentation in Mr. Pritchett’s briefs, even this court did not focus on the
Hackett argument until Mr. Pritchett filed his petition for rehearing. That he was
the beneficiary of panel generosity regarding his petition for rehearing does not
mean that the Commissioner’s position was substantially unjustified. The merits
panel could justifiably have denied the petition because of the undeveloped nature
of the Hackett argument in the briefs. See Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007) (declining to consider arguments inadequately presented in
an appellant’s opening brief). If this court need not address an undeveloped
argument in an appellant’s brief, we can hardly say that the appellee was
unreasonable in not conceding the argument.
In response to the petition for rehearing, the Commissioner advanced
arguments in opposition which, while ultimately unavailing, were nonetheless
reasonable. Those arguments included citation to an unpublished order and
judgment of this court, Sandoval v. Barnhart, 209 F. App’x 820 (10th Cir. 2006),
that arguably could have undermined Mr. Pritchett’s position. Even though in
Mr. Pritchett’s prior appeal we implicitly disagreed with the analysis in the
Sandoval panel’s decision (a disagreement we need not resolve here), we cannot
say that the Commissioner’s adoption of the same argument relied upon in
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Sandoval was substantially unjustified. 1 The Commissioner’s position was thus
unlike that of the Secretary in Gatson v. Bowen, 854 F.2d 379, 380-81 (10th Cir.
1988), who continued to advance an argument that was no longer viable because
of a change in the law.
Mr. Pritchett argues that the ALJ failed to question the vocational expert
about whether his testimony conformed with the Dictionary of Occupational
Titles. Opening Br. at 28. We will not address this argument as it is not relevant
to the issue of EAJA fees and, moreover, was not part of Mr. Pritchett’s case on
the merits.
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
1
The magistrate judge referred to the Commissioner’s arguments opposing
the petition for rehearing in his order, Opening Br. Ex. Q at 4-5, thus undermining
Mr. Pritchett’s contention that the district court failed to focus on the litigation
that occurred after the case came to the Tenth Circuit on appeal. Id. at 21.
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