NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAIL E. CRAIG, No. 16-36052
Plaintiff-Appellant, D.C. No. 3:12-cv-05469-RBL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted March 21, 2018
San Francisco, California
Before: GRABER, BERZON, and MURGUIA, Circuit Judges.
Gail E. Craig appeals the district court’s order denying his motion for
attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d), which he filed after prevailing in his social security appeal. We
previously reversed and remanded the district court’s affirmance of the
administrative law judge’s (“ALJ”) denial of Craig’s application for Supplemental
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Security Income (“SSI”) benefits because substantial evidence in the record did not
support the ALJ’s decision to reject two medical experts’ opinions, and the ALJ
gave no legitimate reasons to distinguish their opinions from a third doctor’s
opinion. In considering Craig’s attorney’s fees motion, the district court found the
Commissioner of Social Security’s (“Commissioner”) position in denying Craig’s
application for SSI benefits substantially justified and denied Craig’s attorney’s
fees motion. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the
district court’s denial of attorney’s fees pursuant to the EAJA for abuse of
discretion, and we reverse and remand for the district court to award attorney’s
fees. See Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013).
The district court abused its discretion in denying Craig’s motion for
attorney’s fees because it misapplied the legal standard used to determine whether
the Commissioner’s position was substantially justified. See id. at 869–70.
Specifically, the district court failed to address on the merits why the
Commissioner’s underlying position—the ALJ’s decision denying Craig’s
application for SSI benefits—was substantially justified, as this court’s precedents
direct. See id. at 870–72 (explaining that this court looks “to decisions of the ALJ
to determine whether the government’s position in the underlying agency action
was substantially justified”). This court’s caselaw makes clear that where
substantial evidence does not support an ALJ’s decision, it is the “decidedly
2
unusual case” in which substantial justification, within the meaning of the EAJA,
exists. See id. at 872 (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.
2005)).
Here, the district court did not address how or why Craig’s case is the
“decidedly unusual case,” even though we previously determined that substantial
evidence in the record does not support the ALJ’s decision to reject the opinions of
two examining mental health experts. See id.(explaining that where substantial
evidence does not support an ALJ’s decision to discount a medical expert’s
opinion is a “strong indication” that the government’s position is not substantially
justified) (internal quotation marks omitted)). Therefore, because the district court
did not acknowledge that the Commissioner’s position consists of two
components—the ALJ’s underlying decision and the Commissioner’s litigation
position—and failed to explain why it believed Craig’s case constitutes the
“decidedly unusual case,” the district court abused its discretion by failing to
conduct the proper analysis. See id.; see also Tobeler v. Colvin, 749 F.3d 830, 832
(9th Cir. 2014).
Moreover, because we conclude that the Commissioner’s underlying
position was not substantially justified because Craig’s case is not the “decidedly
unusual case,” we need not reach the question whether the government’s litigation
position was justified. Cf. Campbell v. Astrue, 736 F.3d 867, 868–69 (9th Cir.
3
2013) (order) (holding that Campbell constituted the “unusual case” because, while
the ALJ erred in her ultimate disability determination, the ALJ was substantially
justified in relying on medical records from 1989 and 2000 to make a disability
determination about whether Campbell was disabled in 1996 because no medical
records from 1996 existed); Meier, 727 F.3d at 872 (“Because the government’s
underlying position was not substantially justified, we need not address whether
the government’s litigation position was justified”); see also Tobeler, 749 F.3d at
834 (“Because the government’s underlying position was not substantially
justified, we award [attorney’s] fees [pursuant to the EAJA], even if the
government’s litigation position may have been justified.”).
REVERSED AND REMANDED.
4
FILED
Craig v. Berryhill, No. 16-36052
JUN 04 2018
GRABER, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur but write separately to point out an anomaly that has crept into our
social security jurisprudence.
In some EAJA cases, we have cited the Supreme Court’s holding that, in
deciding whether the government’s position is substantially justified (and thereby
deciding whether to award fees to the prevailing plaintiff), we should "treat[] a
case as an inclusive whole, rather than as atomized line items." Comm’r, INS v.
Jean, 496 U.S. 154, 161–62 (1990). We cited and applied that principle, for
example, in Al-Harbi v. INS, 284 F.3d 1080, 1084–85 (9th Cir. 2002) (order), and
in Ibrahim v. U.S. Department of Homeland Security, 835 F.3d 1048, 1054–55
(9th Cir. 2016), in which en banc proceedings are ongoing, reh’g en banc granted,
878 F.3d 703 (9th Cir. Dec. 29, 2017) (argued Mar. 20, 2018).
But in Tobeler v. Colvin, 749 F.3d 830, 834–35 (9th Cir. 2014), we held that
the court may consider only whether the government’s position on the sole issue
that led to remand was substantially justified. In my view, Tobeler and the cases it
cited in support of that proposition are wrongly decided on that point. We should
correct that error. Were we free to apply the Jean standard here, in my view fees
would not be awardable.