Donald Cjohnson v. Michael J. Astrue

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD C JOHNSON,
Plaintiff - Appellee,
v.
MICHAEL J. ASTRUE,
Defendant - Appellant.
No. 11-35376
D.C. No. 3:09-cv-05688-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted June 8, 2012 **
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge. ***
FILED
JUN 13 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 We reject Johnson’s argument that the Court lacks jurisdiction because the
Commissioner’s notice of appeal was untimely. Johnson’s argument is premised
on the notion that the clock starts running on the day that triggers the appeals
period. This, however, is incorrect, as the Federal Rules of Appellate Procedure
make clear that “the day of the event that triggers the period” must be excluded.
Fed. R. App. P. 26(a)(1)(A). Applying this rule, the latest the Commissioner could
file his notice of appeal was May 2, 2011, which is the day the Commissioner filed.
2
The district court granted Plaintiff-Appellant Donald C. Johnson’s
(“Johnson”) application for attorney fees and expenses under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Defendant-Appellee the
Commissioner of the Social Security Administration (“Commissioner”) appeals,
arguing that the district court abused its discretion in concluding that the
Commissioner’s litigation position was not substantially justified. Because the
history and facts of this case are familiar to the parties, we recount them only to the
extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. §
1291,1 and we reverse and remand.
The EAJA permits an award of fees to a prevailing party in a civil action
against the United States “unless the court finds that the position of the United
States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). “The
Commissioner is substantially justified if his position met the traditional
reasonableness standard--that is justified in substance or in the main, or to a degree

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2 The Commissioner’s litigation position is that an Administrative Law Judge
need only expressly consider the narrative section of a Mental Residual Functional
Capacity Assessment, which is a form filled out by a physician for the purpose of
determining residual functional capacity. We offer no opinion on the merits of this
argument.
3
that could satisfy a reasonable person.” Lewis v. Barnhart, 281 F.3d 1081, 1083
(9th Cir. 2005) (internal quotation marks omitted). In appraising substantial
justification, a court may consider objective indicia, including the viewpoints of
other courts. Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005)
(citing Pierce v. Underwood, 487 U.S. 552, 568 (1988)). When, however, the
objective indicia are inconclusive, the court must “proceed[] to the merits of the
government's litigati[on] position.” Id. (citing Pierce, 487 U.S. at 568).
In concluding that the Commissioner’s litigation position 2 was not
substantially justified, the district court relied exclusively on two Western District
of Washington cases that had also rejected the Commissioner’s litigation position,
Hartmann v. Astrue, 07-CV-5644RJB and Gibbs v. Astrue, 09-CV-5114KLS.
While these two cases are relevant objective indicia, they are far from dispositive.
As the Supreme Court explained in Pierce, “the fact that one other court agreed or
disagreed with the Government does not establish whether its position was
substantially justified.” 487 U.S. at 569. Furthermore, we note that there is not
even unanimity within the Western District of Washington, as prior to the fee

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award in this case, a different judge had embraced the Government’s litigation
position. See Smith v. Astrue, 09-CV-01582SL.
Accordingly, we hold that the district court abused it discretion by relying
solely on objective indicia in determining that the Commissioner’s litigation
position was not substantially justified. We reverse and remand so that the district
court can consider the Commissioner’s litigation position on the merits. See
Marlar, Inc. v. United States, 151 F.3d 962, 970 (9th Cir. 1998).
REVERSED and REMANDED

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