FILED NOT FOR PUBLICATION NOV 21 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYRONE L. WHITE, No. 23-15341
Plaintiff-Appellant, D.C. No. 2:19-cv-01498-AC
v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of California Allison Claire, Magistrate Judge, Presiding
Submitted November 17, 2023** San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges. Dissent by Judge MILLER.
Following our decision in White v. Kijakazi, 44 F.4th 828 (9th Cir. 2022),
Plaintiff-Appellant Tyrone White sought attorneys’ fees in the district court under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Under the EAJA,
“a prevailing party in a suit against the government is entitled to fees in certain
circumstances unless the government’s position was ‘substantially justified.’” Le
v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008) (quoting United States v. Marolf,
277 F.3d 1156, 1160 (9th Cir. 2002)). To meet this standard, the government must
show that its position had a “reasonable basis both in law and fact.” Meier v.
Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)).
The district court denied the motion for fees. We have jurisdiction under 28
U.S.C. § 1291. We review the decision below for an abuse of discretion, which
“occurs if the district court based its decision on an erroneous legal conclusion or a
clearly erroneous finding of fact.” Gonzales v. Free Speech Coal., 408 F.3d 613,
618 (9th Cir. 2005) (quoting Or. Env’t Council v. Kunzman, 817 F.2d 484, 496
(9th Cir. 1987)). We reverse.
The government argued in White that the Appeals Council could properly
affirm the Administrative Law Judge’s decision without addressing or resolving
the substantial discrepancy between White’s estimates of the number of jobs
available to him in the national economy and the estimates made by the
government’s vocational expert. The government claimed it was appropriate for
2 the agency to rely solely on the vocational expert’s estimates because they were
not “so unreasonable they could not pass the low substantial evidence bar” and
because, in the government’s view, White’s estimates “appear[ed] to be
unreasonable.” As we explained in our opinion, this position was foreclosed by
our decision in Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017), which held that
the agency “violate[s] the general duty to clarify and develop the record” when it
ignores a “vast discrepancy between the [vocational expert’s] job numbers and
those tendered by” the claimant. White, 44 F.4th at 836 (quoting Buck, 869 F.3d at
1052).
The district court found that the government’s position was nonetheless
substantially justified because our opinion in White involved “an extension of Buck
to the circumstances of this case,” since White presented his estimates for the first
time before the Appeals Council instead of the Administrative Law Judge. But
whether our decision extended prior precedents is not the correct inquiry. We look
instead to the government’s litigation conduct to determine whether its actions
were substantially justified, considering whether its “position ‘as a whole’ ha[d] ‘a
reasonable basis in both law and fact.’” Ibrahim v. U.S. Dep’t of Homeland Sec.,
912 F.3d 1147, 1168 (9th Cir. 2019) (en banc) (quoting Gutierrez v. Barnhart, 274
F.3d 1255, 1259 (9th Cir. 2001)).
3 The gravamen of the government’s position was that the agency could rely
exclusively on the vocational expert’s estimates because the government claimed
those estimates were more reliable than White’s. That position was incompatible
with Buck. The government’s argument that Buck was distinguished by White’s
submission of evidence to the Appeals Council consisted of a single sentence
without citation in briefing that, except for that sentence, entirely relied on an
argument that was foreclosed by our holding in Buck. That single sentence is not
enough to escape the conclusion that the government’s position as a whole lacked
substantial justification. See id. at 1171 (“That some of the arguments made along
the way by the government attorneys passed the straight face test . . . does not
persuade us that the government’s position was substantially justified.”).
Moreover, “[t]he government’s position is not substantially justified simply
because our precedents have not squarely foreclosed the position.” Decker v.
Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). Social Security Administration
regulations and our prior cases clearly establish that “a claimant has a right to
submit additional evidence to the Appeals Council” upon a showing of good cause.
White, 44 F.4th at 836–37 (citing 20 C.F.R. § 404.970(b); Brewes v. Comm’r of
Soc. Sec. Admin., 682 F.3d 1157, 1162–63 (9th Cir. 2012)). The Appeals Council
accepted White’s evidence and made it “part of the record.” Id. at 836. We hold
4 that our precedents made it sufficiently clear before White that the timing of
White’s submission of evidence did not distinguish his case from the rule we
announced in Buck.
We therefore conclude that the district court abused its discretion in finding
the government’s position substantially justified. See Le, 529 F.3d at 1201.
REVERSED and REMANDED.
5 FILED White v. Kijakazi, No. 23-15341 NOV 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MILLER, Circuit Judge, dissenting:
The district court did not abuse its discretion when it deemed the
government’s position substantially justified and denied White’s motion for
attorney’s fees under the Equal Access to Justice Act. Abuse of discretion is a
“highly deferential standard” under which we may not “substitute [our] ‘view of
what constitutes substantial justification for that of the district court.’” Gonzales v.
Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.
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FILED NOT FOR PUBLICATION NOV 21 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYRONE L. WHITE, No. 23-15341
Plaintiff-Appellant, D.C. No. 2:19-cv-01498-AC
v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of California Allison Claire, Magistrate Judge, Presiding
Submitted November 17, 2023** San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges. Dissent by Judge MILLER.
Following our decision in White v. Kijakazi, 44 F.4th 828 (9th Cir. 2022),
Plaintiff-Appellant Tyrone White sought attorneys’ fees in the district court under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Under the EAJA,
“a prevailing party in a suit against the government is entitled to fees in certain
circumstances unless the government’s position was ‘substantially justified.’” Le
v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008) (quoting United States v. Marolf,
277 F.3d 1156, 1160 (9th Cir. 2002)). To meet this standard, the government must
show that its position had a “reasonable basis both in law and fact.” Meier v.
Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)).
The district court denied the motion for fees. We have jurisdiction under 28
U.S.C. § 1291. We review the decision below for an abuse of discretion, which
“occurs if the district court based its decision on an erroneous legal conclusion or a
clearly erroneous finding of fact.” Gonzales v. Free Speech Coal., 408 F.3d 613,
618 (9th Cir. 2005) (quoting Or. Env’t Council v. Kunzman, 817 F.2d 484, 496
(9th Cir. 1987)). We reverse.
The government argued in White that the Appeals Council could properly
affirm the Administrative Law Judge’s decision without addressing or resolving
the substantial discrepancy between White’s estimates of the number of jobs
available to him in the national economy and the estimates made by the
government’s vocational expert. The government claimed it was appropriate for
2 the agency to rely solely on the vocational expert’s estimates because they were
not “so unreasonable they could not pass the low substantial evidence bar” and
because, in the government’s view, White’s estimates “appear[ed] to be
unreasonable.” As we explained in our opinion, this position was foreclosed by
our decision in Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017), which held that
the agency “violate[s] the general duty to clarify and develop the record” when it
ignores a “vast discrepancy between the [vocational expert’s] job numbers and
those tendered by” the claimant. White, 44 F.4th at 836 (quoting Buck, 869 F.3d at
1052).
The district court found that the government’s position was nonetheless
substantially justified because our opinion in White involved “an extension of Buck
to the circumstances of this case,” since White presented his estimates for the first
time before the Appeals Council instead of the Administrative Law Judge. But
whether our decision extended prior precedents is not the correct inquiry. We look
instead to the government’s litigation conduct to determine whether its actions
were substantially justified, considering whether its “position ‘as a whole’ ha[d] ‘a
reasonable basis in both law and fact.’” Ibrahim v. U.S. Dep’t of Homeland Sec.,
912 F.3d 1147, 1168 (9th Cir. 2019) (en banc) (quoting Gutierrez v. Barnhart, 274
F.3d 1255, 1259 (9th Cir. 2001)).
3 The gravamen of the government’s position was that the agency could rely
exclusively on the vocational expert’s estimates because the government claimed
those estimates were more reliable than White’s. That position was incompatible
with Buck. The government’s argument that Buck was distinguished by White’s
submission of evidence to the Appeals Council consisted of a single sentence
without citation in briefing that, except for that sentence, entirely relied on an
argument that was foreclosed by our holding in Buck. That single sentence is not
enough to escape the conclusion that the government’s position as a whole lacked
substantial justification. See id. at 1171 (“That some of the arguments made along
the way by the government attorneys passed the straight face test . . . does not
persuade us that the government’s position was substantially justified.”).
Moreover, “[t]he government’s position is not substantially justified simply
because our precedents have not squarely foreclosed the position.” Decker v.
Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). Social Security Administration
regulations and our prior cases clearly establish that “a claimant has a right to
submit additional evidence to the Appeals Council” upon a showing of good cause.
White, 44 F.4th at 836–37 (citing 20 C.F.R. § 404.970(b); Brewes v. Comm’r of
Soc. Sec. Admin., 682 F.3d 1157, 1162–63 (9th Cir. 2012)). The Appeals Council
accepted White’s evidence and made it “part of the record.” Id. at 836. We hold
4 that our precedents made it sufficiently clear before White that the timing of
White’s submission of evidence did not distinguish his case from the rule we
announced in Buck.
We therefore conclude that the district court abused its discretion in finding
the government’s position substantially justified. See Le, 529 F.3d at 1201.
REVERSED and REMANDED.
5 FILED White v. Kijakazi, No. 23-15341 NOV 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MILLER, Circuit Judge, dissenting:
The district court did not abuse its discretion when it deemed the
government’s position substantially justified and denied White’s motion for
attorney’s fees under the Equal Access to Justice Act. Abuse of discretion is a
“highly deferential standard” under which we may not “substitute [our] ‘view of
what constitutes substantial justification for that of the district court.’” Gonzales v.
Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005) (quoting Bay Area Peace
Navy v. United States, 914 F.2d 1224, 1230 (9th Cir. 1990)). Instead, our “review
‘is limited to assuring that the district court’s determination ha[d] a basis in
reason.’” Id. (quoting Bay Area Peace Navy, 914 F.2d at 1230).
The government’s position is substantially justified if it “has a reasonable
basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988); id. at
565 (defining “substantial” as “justified to a degree that could satisfy a reasonable
person”). I joined Judge W. Fletcher’s opinion setting aside the agency’s denial of
benefits, and I continue to believe that it was correct. But, ex ante, it was not so
obviously correct as to deprive the government’s contrary position of a reasonable
basis.
Until our decision in this case, we had never set aside the agency’s denial of
benefits on the basis of evidence presented for the first time to the Appeals
1 Council. To be sure, the agency’s regulations permit a claimant to submit
additional evidence to the Appeals Council. 20 C.F.R. § 404.970(a)(5). But where,
as here, the Appeals Council denies review, the decision of the ALJ remains the
final decision of the agency. Id. § 404.981. And it is not obvious from the
regulations how new evidence submitted to the Appeals Council can cause the
ALJ’s earlier decision to cease to be supported by substantial evidence. Our
decision in Buck v. Berryhill does not answer that question because it involved
evidence submitted in the first instance to an ALJ, not the Appeals Council. 869
F.3d 1040 (9th Cir. 2017). Although we ultimately concluded that the timing of the
submission did not matter, our decision to publish an opinion in this case implicitly
recognized that applying Buck in this context represents at least a modest extension
of its holding. It was not unreasonable for the government to attempt to distinguish
Buck, even if it did so without a lengthy exposition of the issue. (I see no basis for
tying the justification of the government’s position to the length of its briefing in
support of that position, lest we incentivize parties to write even longer briefs than
they already do.) More to the point, it was not an abuse of discretion for the district
court to conclude that the government’s position had a reasonable basis.
I would affirm the district court’s decision to deny fees.