ALBERTSON v. BERRYHILL (2018)

MEMORANDUM **

Albertson appeals the denial of his motion for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. We have jurisdiction pursuant to 28 U.S.C. § 1291, review for abuse of discretion, Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010), and affirm.

1. There were specific facts in the record here that could be linked to the administrative law judge’s (ALJ) erroneous adverse credibility finding—namely, the daily activities Albertson reportedly engaged in. Because the ALJ’s inferences “had substance in the record” and were “tie[d] ․ to specific evidence,” the magistrate court did not abuse its discretion in denying fees. See id.; see also Le v. Astrue, 529 F.3d 1200, 1201–02 (9th Cir. 2008) (upholding denial of fees where initial error related to a “fact-specific” legal standard and a “nonfrivolous argument could be made” for the government’s application of the standard to the facts presented); Lewis v. Barnhart, 281 F.3d 1081, 1083–84 (9th Cir. 2002).

2. “The disagreement within [the] panel regarding the merits of the government’s appeal” in the prior appeal to this court “further suggests that a finding of substantial justification is appropriate.” Bay Area Peace Navy v. United States, 914 F.2d 1224, 1231 (9th Cir. 1990); see also Gonzales v. Free Speech Coal., 408 F.3d 613, 621 (9th Cir. 2005) (finding that “ ‘reasonable minds’ could and did differ” relevant to the substantial justification analysis).¹ Indeed, the fact that the panel was not unanimous in its decision to award benefits distinguishes this case from other cases reversed for lack of substantial evidence.

AFFIRMED.

FOOTNOTES

1.   Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988), does not preclude us from considering the views of other jurists in our substantial justification analysis; it merely discusses the probative value of various courts having already faced an issue. See id. at 569, 108 S.Ct. 2541.