FILED
United States Court of Appeals
Tenth Circuit
February 4, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SUZAN L. MADRON,
Plaintiff-Appellant,
No. 10-1066
v. (D.C. No. 1:05-CV-00869-WDM)
(D. Colo.)
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
Citing back pain and respiratory problems, Suzan Madron alleged she was
unable to work and applied for disability benefits. After her application was
denied, she sought review, unsuccessfully, first before an administrative law
judge (“ALJ”), and then before the district court. Ms. Madron fared better on
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
appeal in this court, however; we agreed with her that the ALJ’s decision denying
benefits was defective in two respects. See Madron v. Astrue, 311 F. App’x 170
(10th Cir. 2009). First, we held the ALJ’s credibility determination regarding Ms.
Madron’s subjective pain testimony wasn’t supported by substantial evidence. Id.
at 181. Second, given the ALJ’s finding that Ms. Madron possessed a reading
level of 1, and testimony that her previous employment required a reading level of
2, we also held the ALJ was wrong to conclude that Ms. Madron’s old job was
among the jobs available to her post-injury. Id. at 181-82. In light of all this, we
remanded the case for an immediate award of benefits.
After prevailing in her underlying disability claim, Ms. Madron sought to
recoup her attorneys’ fees and expenses under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. The district court denied Ms. Madron’s EAJA
application, however, holding that the United States had established that its
position in the underlying litigation was “substantially justified.” See 28 U.S.C.
§ 2412(d)(1)(A) (instructing that the court shall award fees and expenses to the
prevailing parties unless, among other things, “the court finds that the position of
the United States was substantially justified”). Now before us again, Ms. Madron
asks us to reverse the district court’s ruling that the government’s position was
substantially justified.
We may do so only if we can say that the district court abused its discretion
in reaching the determination it did — something that occurs “when the district
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court bases its ruling on an erroneous conclusion of law or relies on clearly
erroneous fact findings.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir.
2007). In conducting our inquiry under this standard of review, it’s irrelevant
how we, as an initial matter, might have ruled on Ms. Madron’s EAJA
application. Of necessity, the abuse of discretion standard of review “implies a
degree of discretion invested” in the district court, not in this court, to issue a
decision “based upon what is fair in the circumstances and guided by the rules
and principles of law.” Valley Forge Ins. Co. v. Health Care Mgmt., 616 F.3d
1086, 1096 (10th Cir. 2010) (internal quotation and alteration omitted). Our
appellate role is limited to ensuring that the district court’s discretionary decision
did not fall beyond “the bounds of the rationally available choices [before the
district court] given the facts and the applicable law in the case at hand.” Id.
(internal quotation omitted). And, of course, it is the appellant’s obligation to
shoulder the burden of showing an error of this magnitude has occurred.
This Ms. Madron says she can do. In her view, the district court’s
judgment — that the government’s litigation position was substantially justified
— has to be an abuse of discretion. It has to be, Ms. Madron insists, because the
government’s position was rejected by this court in her merits appeal. As she
puts it, the “Law of the Case” precludes the government from arguing the
reasonableness of its litigation efforts; it follows inexorably from this court’s
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conclusion that the ALJ’s decision lacked substantial evidence that the
government’s efforts to defend the decision lacked substantial justification.
We reject this argument because it conflates two different questions. When
we review the merits of a denial of benefits, as we did in Ms. Madron’s previous
appeal, we review for the presence or absence of substantial evidence to support
the administrative decision. See, e.g., Frantz v. Astrue, 509 F.3d 1299, 1300
(10th Cir. 2007); Madron, 311 F. App’x at 175. When a district court reviews an
EAJA application, however, it considers (among other things) whether the
government’s litigating position enjoyed substantial justification in fact and law;
that is, whether its litigating position was reasonable even if wrong. See Gatson
v. Bowen, 854 F.2d 379, 380 (10th Cir. 1988). “The government’s position can be
[substantially] justified,” we have repeatedly held, “even though it is not correct.”
Hackett, 475 F.3d at 1172 (internal quotation marks omitted). The test for
substantial justification under the EAJA, the Supreme Court has added, is simply
“one of reasonableness.” Pierce v. Underwood, 487 U.S. 552, 563-64 (1988). In
other words, it does not necessarily follow from our decision vacating an
administrative decision that the government’s efforts to defend that decision
lacked substantial justification. Ms. Madron’s suggestion otherwise is simply
erroneous. Neither does Ms. Madron develop in her opening brief any other
argument for reversing the district court. Accordingly, any other basis for
reversal is waived and this court is obliged to affirm. See Headrick v. Rockwell
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Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (White, J., sitting by
designation). AFFIRMED.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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