William Diesta v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 2022
• Docket: 20-15729
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM Q. DIESTA, No. 20-15729

Plaintiff-Appellant, D.C. No. 1:15-cv-00465-HG-RT v.

KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM* of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Submitted January 21, 2022** Honolulu, Hawaii

Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.

William Diesta appeals a district court order denying his motion for attorney

fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412(d). We have jurisdiction under 28 U.S.C. § 1291 and deny the appeal.

* 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). 1. The substance of Diesta’s underlying social security case is not at issue

here, but this court addressed it in an earlier appeal. In that matter, a divided panel

of this court reversed and remanded Diesta’s case for an award of benefits. The

panel concluded that the administrative law judge (ALJ) erred by failing to state

“clear and convincing reasons” for rejecting some of clinical psychologist Dr.

Dennis Donovan’s conclusions regarding Diesta’s ability to work. See Diesta v.

Berryhill, 766 F. App’x 481, 482 (9th Cir. 2019) (unpublished). As the prevailing

party on appeal, Diesta then filed a motion for attorney fees under the EAJA, which

the district court denied.

2. We review a district court’s denial of EAJA attorney fees for an abuse of

discretion. Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). Under the EAJA,

a prevailing party is entitled to fees and other expenses “unless the court finds that

the position of the United States was substantially justified or that special

circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In determining

whether the government’s position was “substantially justified,” a district court is

required to consider (1) whether the government’s position in the litigation was

substantially justified, and (2) whether the agency’s underlying action or inaction

was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

3. Diesta argues the district court abused its discretion by finding that the

government’s litigation position was substantially justified. We disagree.

2 Although this court reversed and remanded the ALJ and district court’s denial

of benefits, Diesta’s success on the merits “is not dispositive of an EAJA

application.” See Decker v. Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). The

government persuaded both a district court judge and a judge of this court that the

ALJ’s position was not reversible error. That demonstrates that the government’s

position in the underlying social security case had a “reasonable basis in law and

fact” and thus was “substantially justified,” even if it did not ultimately prevail on

appeal. See Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998); Meier, 727 F.3d

at 873 (noting it is “proper” to consider the government’s success on the merits in

district court as part of an EAJA analysis).

4. Diesta also argues the district court abused its discretion by failing to

consider whether the ALJ’s underlying decision was substantially justified. Again,

we disagree.

Although the district court failed to state explicitly whether or not the ALJ’s

underlying decision was substantially justified, its failure to do so was not an abuse

of discretion because it is clear from the district court’s written decision that the issue

was considered and decided. The district court’s decision not only explains the

ALJ’s underlying decision but also notes it previously found the ALJ did not err.

Additionally, the district court provides a lengthy analysis of the government’s

litigation position, and “the inquiry into the government’s litigation position will

3 ordinarily encompass the inquiry into the administrative decision.” Sampson, 103

F.3d at 922.

AFFIRMED.