Tracy Hannah v. Comm'r of Soc. Sec. ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0024p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CAROLYN GRIFFITH (19-6395); TIMOTHY HOWARD (19-6396); ROBERT ┐
MARTIN (19-6397); PATRICIA LANE RICHARDS (19-6398); REGINA │
REED (19-6399); ROSS CLAYTON FLEMING (19-6400); TERESA AKERS │
(19-6401); STEPHEN KIDD (19-6402); ELIZABETH WRIGHT (19-6403); │
MARGIE LEWIS (19-6412); TOMMY MAYNARD (19-6413); LANA │
GRESHAM (19-6414); RODNEY JUSTICE (19-6415); MARSHA F. KIDD > Nos. 19-6395 et al.
│
(19-6419); BENNY COLE (19-6422); MICHAEL CLINE (19-6432);
│
GREGORY SALISBURY (19-6433); EDDIE REED (19-6438); MARGARET
│
COPLEY (19-6439); RANIE COLEMAN (19-6440); JANIE SHEPHERD (19-
│
6441); LENNY NEWSOME (19-6442); JANICE WORKMAN (19-6443);
│
JOANN HOLBROOK (19-6444); BETTY ROBINSON (19-6445); KATHY
│
RAMEY (19-6446); CAROLYN BATES (19-6452); KATHLEEN CAMPBELL
│
CURTIS (19-6453); CHAD SHEPHERD (19-6472); DANNY REED (19-
│
6473); TRACY HANNAH (19-6474); MARTIN GILLESPIE (19-6487);
│
CHESSIE GRAY (19-6488); CLINTON MULLINS (19-6489); ROBERT
│
MUNCY II (19-6490); MARY SEXTON (19-6491); BRENDA STEWART
│
(19-6492); JOHN PERKINS (20-5057); EDD PAIGE (20-5058); MICHELLE
│
MAYNARD (20-5059); DANNY JOHNSON (20-5060); JAMES TAYLOR
│
(20-5061); TERRY SHEPHERD (20-5062); JANET FAYE SKAGGS (20-
│
5063); PATRICIA GAY LEMASTER (20-5064); MARCIA KAY HYLTON
│
(20-5065); JIMMY KILGORE (20-5066); TERESA HINKLE-SPEARS (20-
│
5067); TAMMY SLONE (20-5078); CORA NEACE RUSSELBURG (20-
│
5079); SHERRI LYNN COMBS (20-5080); MARTHA NEACE (20-5106);
│
ELIZABETH ANN WHITE (20-5107); DONNA JEWELL (20-5108); PEGGY
│
WOLFORD (20-5109); SHARON THOMPSON (20-5146); DALE WIREMAN
│
(20-5159),
│
Plaintiffs-Appellants, │
│
v. │
│
│
COMMISSIONER OF SOCIAL SECURITY, │
Defendant-Appellee. │
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 3
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Amy Lishinski, Daniel S. Volchok,
Arpit K. Garg, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C.,
Evan B. Smith, APPALRED LEGAL AID, Prestonsburg, Kentucky, Wolodymyr Cybriwski,
Prestonsburg, Kentucky, Derek D. Humfleet, RADEN HUMFLEET LAW, PLC, Lexington,
Kentucky, George Piemonte, MARTIN, JONES& PIEMONTE, Decatur, Georgia, Ned
Pillersdorf, PILLERSDORF, DEROSSETT & LANE, Prestonsburg, Kentucky, for Appellants.
Jaynie Lilley, Charles Scarborough, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
GIBBONS, J., delivered the opinion of the court in which ROGERS, J., joined.
MOORE, J. (pp. 23–26), delivered a separate dissenting opinion.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. In Hicks v. Commissioner of Social Security, a
majority of this panel concluded that the government’s process for redetermining plaintiffs’
eligibility for social security benefits was constitutionally and statutorily deficient. 909 F.3d
786, 791–92 (6th Cir. 2018). So we remanded the eleven cases that we had consolidated on
appeal to three district courts for further proceedings consistent with our opinion. After remand,
those plaintiffs, as well as forty-six other plaintiffs whose cases had been stayed pending a
decision in Hicks, filed motions for attorney’s fees under the Equal Access to Justice Act. The
district courts unanimously denied fees because they concluded that the government’s position in
the Hicks litigation was “substantially justified.” We agree and affirm.
I.
Throughout the 2000s and early 2010s, attorney Eric Conn obtained social security
benefits for his clients by “submitting fraudulent reports to the Social Security Administration”
and bribing an Administrative Law Judge. Hicks, 909 F.3d at 791–92. After the government
discovered this fraud, the SSA decided to redetermine whether each of Conn’s clients (over
1,500 claimants) were actually eligible for disability benefits. Id. at 794. The SSA held hearings
for each of the claimants and allowed them to submit evidence that they were entitled to benefits.
Id. at 795. However, the SSA categorically excluded medical reports created by the four doctors
with whom Conn had conspired because it had “reason to believe” fraud was involved in the
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 4
creation of the reports. Id. at 794–95 (citing 42 U.S.C. § 1383(e)(7)(A)(ii)). The claimants were
not given the opportunity to challenge the factual finding that there was reason to believe that
fraud was involved in the creation of the medical reports. Id. After individual hearings before
administrative law judges, plaintiffs’ claims for disability benefits were denied. Id. at 795.
Fifty-seven plaintiffs then filed suit in the Eastern District of Kentucky challenging the
exclusion of the medical reports under the Due Process Clause, the Administrative Procedure
Act, and the Social Security Act. Id. at 796. Judge Amul Thapar, then on the district court,
heard seven of these cases and concluded that the exclusion of the medical reports violated the
Due Process Clause because plaintiffs were not given the opportunity to challenge the factual
finding that there was “reason to believe” fraud had been involved in the creation of the reports.
Id. Judge Reeves heard three of the cases and held that the government had not violated
plaintiffs’ due process rights or the APA. Id. Judge Hood also heard one of the cases and
reached the same conclusion as Judge Reeves. Id. This court consolidated these eleven cases on
appeal, and the forty-six other cases were stayed pending a decision by this court. Id. at 792.
The panel majority held that the exclusion of the reports violated both the Due Process
Clause and the APA. Id. On the due process claim, the majority held that the balancing test
announced in Mathews v. Eldridge did not apply because this case involved “minimum due
process.” Id. at 799. Additionally, the majority concluded that, even if Mathews applied, the
balancing weighed in plaintiffs’ favor. Id. at 800–04. Therefore, the government had violated
plaintiffs’ due process rights by refusing to give them the opportunity to challenge the factual
finding that fraud had been involved in the creation of the medical reports. Id. at 804. On the
APA claim, the majority held that the government had failed to comply with the APA’s “formal
adjudication requirements” and had acted arbitrarily and capriciously by treating cases involving
fraud investigated by the Office of the Inspector General (such as plaintiffs’ cases) differently
than cases involving fraud investigated by the SSA. Id. at 804–09. Finally, the panel
unanimously agreed that the government had not violated the Social Security Act. Id. at 809–13;
id. at 827 (Rogers, J., concurring in Part II.C).
Judge Rogers dissented because he believed that the government had provided due
process and complied with the APA. Id. at 813–27 (Rogers, J., dissenting). On the due process
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 5
claim, Judge Rogers disagreed with the majority’s contention that this case could be decided
without invoking Mathews and with the majority’s application of Mathews. Id. at 813–23. On
the APA claim, he would have held that the government did not have to comply with the APA’s
formal adjudication requirements. Id. at 823–25. He also would have held that plaintiffs had
forfeited their arbitrary and capricious claim, and, even if they had not, the government’s reason
for treating OIG-instigated cases differently than SSA-instigated cases—that OIG cases are
typically on a larger-scale—was rational. Id. at 825–27.
The panel then remanded the cases to the district courts. On remand, the district courts
had to determine whether to remand the cases to the SSA under sentence four or sentence six of
42 U.S.C. § 405(g). See, e.g., Hicks v. Berryhill, 392 F. Supp. 3d 784, 788 (E.D. Ky. 2019). The
government argued that remand was proper under sentence six, which applies when the court has
not issued a substantive ruling on the correctness of the ALJ’s decision. Id. The district courts
unanimously rejected that argument and concluded that the cases should be remanded under
sentence four, which applies when “the Commissioner erred in some respect in reaching the
decision to deny benefits.” Id. (quoting Jackson v. Chater, 99 F.3d 1086, 1095 (11th Cir. 1996)).
After remand, plaintiffs filed motions in front of three district court judges for attorney’s
fees under the Equal Access to Justice Act. Howard v. Saul, No. 7:16-cv-051, 2019 WL
5191831, at *3 (E.D. Ky. Oct. 15, 2019) (Griffith); In re: Fee Motions in Various Social Security
Cases, No. 5:16-cv-128 et al., 2020 WL 109808, at *2 (E.D. Ky. Jan. 9, 2020) (Perkins); In re:
Fee Motions in Various Social Security Cases, No. 5:16-cv-130 et al., 2019 WL 6119220, at *1
(E.D. Ky. Nov. 18, 2019) (Reed). The relevant issue in the district courts (and in this case) was
whether the government’s position was “substantially justified.” See, e.g., Griffith, 2019 WL
5191831, at *3. All three district court judges held that the government’s position in Hicks was
substantially justified and, therefore, denied plaintiffs’ motions for attorney’s fees. See, e.g., id.
at *8. Plaintiffs appealed.
II.
We review a district court’s decision denying EAJA fees for abuse of discretion. Pierce
v. Underwood, 487 U.S. 552, 563 (1988). “To find that the district court abused its discretion,
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 6
this court must be firmly convinced that a mistake has been made.” Damron v. Comm’r of Soc.
Sec., 104 F.3d 853, 855 (6th Cir. 1997) (citing Pierce, 487 U.S. at 559). “An error of law is an
abuse of discretion.” United States v. Lawrence, 735 F.3d 385, 405 (6th Cir. 2013).
III.
Before turning to the facts of this case, we first describe the principles governing the
award of attorney’s fees under the Equal Access to Justice Act. The EAJA carved out an
exception to the general rule that each party pays its own attorney’s fees. Scarborough v.
Principi, 541 U.S. 401, 404 (2004). Under the EAJA:
[A] court shall award to a prevailing party other than the United States fees and
other expenses . . . incurred by that party in any civil action (other than cases
sounding in tort), including proceedings for judicial review of agency action,
brought by or against the United States in any court having jurisdiction of that
action, 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). The only issue in this case is whether the government’s position in
the Hicks litigation was “substantially justified.” The government bears the burden of proving
substantial justification. DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014).
A position is “substantially justified” if the position is “‘justified in substance or in the
main’ – that is justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at
565. In other words, a position is substantially justified if “a reasonable person could think it
correct” and “it has a reasonable basis in law and fact.” Id. at 566 n.2. This standard envisions
that the government’s position must be “more than merely undeserving of sanctions for
frivolousness.” Id. at 566. However, it may be “justified even though it is not correct.” Id. at
566 n.2; see also Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993)
(“While the EAJA redresses governmental abuse, it was never intended to chill the government’s
right to litigate or to subject the public fisc to added risk of loss when the government chooses to
litigate reasonably substantiated positions, whether or not the position later turns out to be
wrong.”).
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 7
When considering whether the government’s position is substantially justified, we focus
on the merits of that position. While “objective indicia” of reasonableness—such as a dissenting
opinion, the views of other courts, “a string of losses”, or a “string of successes”—may be
relevant, it is “the actual merits of the Government’s litigating position” that matter most.
United States ex rel. Wall v. Circle C Constr., LLC, 868 F.3d 466, 471 (6th Cir. 2017) (quoting
Pierce, 487 U.S. at 569). Additionally, “[h]ere as in other areas courts need to guard against
being ‘subtly influenced by the familiar shortcomings of hindsight judgment.’” Taucher v.
Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005) (Roberts, J.) (quoting Beck v. Ohio,
379 U.S. 89, 96 (1964)); see also id. at 1174 (“[J]ust as discovery of contraband does not
establish probable cause, nor an accident negligence, nor poor returns an imprudent trustee, so
too a loss on the merits does not mean that legal arguments advanced in the context of our
adversary system were unreasonable.”). For that reason, we distinguish between cases in which
“the government lost because it vainly pressed a position ‘flatly at odds with the controlling case
law’” and cases in which “the government lost because an unsettled question was resolved
unfavorably.” Id. at 1174; see also Perket v. Sec’y of Health & Hum. Servs., 905 F.2d 129, 135
(6th Cir. 1990) (“For the purposes of the EAJA, the more clearly established are the governing
norms, and the more clearly they dictate a result in favor of the private litigant, the less ‘justified’
it is for the government to pursue or persist in litigation.” (quoting Spencer v. N.L.R.B., 712 F.2d
539, 559 (D.C. Cir. 1983))).
We also focus our inquiry on the government’s position “as a whole.” Amezola-Garcia v.
Lynch, 835 F.3d 553, 555 (6th Cir. 2016). The government’s whole position includes its
arguments made during litigation as well as its pre-litigation conduct. EEOC v. Memphis Health
Ctr., 526 F. App’x 607, 614 (6th Cir. 2013), cited with approval in, Amezola-Garcia, 835 F.3d at
556. Even if “part of the government’s case may have merit, it is still plausible that its position
as a whole lacks substantial justification.” Id. at 615. Conversely, even if the government’s
argument on a less-prominent claim was not reasonable, its position as a whole may have been
substantially justified. Accord id. When confronted with a situation in which some arguments
were reasonable and some were not, we must determine “what impact that dichotomy had on the
government’s case as a whole” by looking at which claim was “more prominent” and whether
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 8
the claims were “sufficiently intertwined legally and factually that an insubstantial justification
as to one renders the entire overall position unjustified.” Id.
IV.
We these principles in mind, we turn now to the case at hand. In Hicks, the government
excluded evidence created by four doctors with whom Conn had conspired because it found that
there was “reason to believe” that fraud was involved in the creation of that evidence. Hicks,
909 F.3d at 791–92. The government did not give plaintiffs the opportunity to challenge that
factual finding. Id. Plaintiffs argued that the Due Process Clause, the Administrative Procedure
Act, and the Social Security Act required the government to allow them to challenge the factual
finding that fraud was involved in the creation of the evidence. A majority of this panel agreed
with plaintiffs on the first two claims, although the panel unanimously agreed with the
government on the Social Security Act claim. After the cases were remanded to the district
courts, the government argued that the district courts should remand the cases to the Social
Security Administration under sentence six of 42 U.S.C. § 405(g) instead of sentence four. The
district courts disagreed and remanded the cases under sentence four.
To determine whether the government’s position was reasonable, we consider the
government’s argument on the due process claim, APA claim, and sentence six/sentence four
remand issue individually. Then we consider the reasonableness of these arguments together,
alongside “objective indicia of reasonableness,” such as Judge Rogers’s thoughtful dissent, the
fact that two district courts had agreed with the government in Hicks, and the disagreement
among jurists in similar cases around the country. These considerations lead us to conclude that
the district courts did not abuse their discretion in determining that the government’s position
was substantially justified.
A.
We first turn our attention to the government’s arguments on the due process claim. In
Hicks, the government maintained that this case was governed by the flexible balancing test
articulated in Mathews v. Eldridge and that, under that test, the decision not to allow plaintiffs to
challenge the factual finding that fraud had been involved in the creation of the medical reports
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 9
did not violate due process. Plaintiffs disagreed and argued that this case was not governed by
Mathews because it involved “minimum due process”; that minimum due process cannot be
“balanced away”; and that, even under Mathews, the government had violated plaintiffs’ due
process rights. The panel majority agreed with plaintiffs’ position and held that Mathews does
not apply to cases involving “minimum-due process.” Hicks, 909 F.3d at 797. For support, the
majority cited to “long-standing principles of procedural due process that predate the Mathews
test.” Id.; see also id. (describing these principles as “immutable”). These principles were
primarily derived from three Supreme Court cases: Greene v. McElroy, 360 U.S. 474 (1959),
Mathews v. Eldridge, 424 U.S. 319 (1976), and Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Id.The majority also held that even if Mathews applied, the government’s redetermination
procedures were inadequate because the risk of erroneous deprivation was too high, the plaintiffs
had a substantial interest in receiving benefits, and the government’s interests were not
sufficiently compelling. Id. at 799–804.
Despite the fact that the panel majority disagreed with the government’s argument that
the Mathews balancing test applied, that argument was reasonable. Contrary to plaintiffs’
contention in their current briefing, the government never argued that “minimum due-process
protections, including an opportunity to be heard,” could be “balanced away.” CA6 R.31,
Appellant Br., at 23. The government explicitly stated in its reply brief before the original panel
that “[t]he Mathews test does not, of course, permit ‘minimum due process protections [to] be
balanced away.’” 17-5206 CA6 R.36, Gov’t. Reply Br., at 21. The government’s argument was
simply that when minimum due process is not provided “the balance will invariably tilt in favor
of additional protection” under Mathews. Id. A reasonable person looking at the state of the law
before Hicks could have believed that this argument was correct because there was no binding
precedent choosing to apply a “minimum due process” analysis instead of a Mathews analysis.
In fact, there was an unpublished case in this circuit—which the government cited in its briefing
before the original panel—applying Mathews to a case in which no hearing of any kind was held
before or after the government deprived a person of a property interest. See Henry v. City of
Middletown, 655 F. App’x 451, 462–63 (6th Cir. 2016). It is true—as we recognized in Hicks—
that the Supreme Court had stated that there was some minimum-level of due process that the
government could not take away, but neither the Supreme Court nor this court had ever applied
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 10
that statement in a case without also applying Mathews. See Perket, 905 F.2d at 135 (“For the
purposes of the EAJA, the more clearly established are the governing norms, and the more
clearly they dictate a result in favor of the private litigant, the less ‘justified’ it is for the
government to pursue or persist in litigation.” (emphasis added) (quoting Spencer, 712 F.2d at
559)). Therefore, while the panel majority correctly concluded that Mathews did not apply to
cases involving minimum due process, a reasonable person could have believed that Mathews
provided the relevant standard.1
Plaintiffs argue that finding that the government’s position on this point was reasonable
would require us to ignore the principle of stare decisis and “reject Hicks.” See CA6 R.40, Reply
Br., at 11. However, just because this court cannot (and would not) reject Hicks, does not mean
that we cannot recognize that a reasonable person could disagree with the result (or, more
importantly, could have disagreed with the result before Hicks was decided). It is entirely
consistent for this court to say that the holding that Mathews does not apply to cases involving
minimum due process is binding and that the government’s argument to the contrary was
reasonable.
Even beyond the dispute over whether Mathews applied, the government’s argument that
the Mathews balancing test weighed in its favor was also reasonable. As a starting point, the
Mathews balancing test is flexible, which weighs in the government’s favor. While plaintiffs are
correct that it is possible for the government to take a position that is not substantially justified
by a balancing test, a balancing test generally establishes norms that are less well-defined than a
bright-line rule. See Perket, 905 F.2d at 135.
1Plaintiffs argue that our use of the words “immutable” and “long-standing” throughout the opinion
demonstrates that the government’s position was unreasonable. We do not agree. Even if “[s]trong language
against the government’s position in an opinion discussing the merits of a key issue is evidence in support of an
award of EAJA fees,” Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004), that strong language is not
sufficient, in and of itself, to show that the government’s position was unreasonable. After all, the government did
not have the benefit of that language when it was crafting its position.
The Hicks majority also did not use the words “immutable” and “long-standing” to refer to factually
identical cases but rather to “principles”, which are typically broad and could require different results in different
cases. Hicks, 909 F.3d at 797. For example, there is, of course, an immutable principle in this country that every
person is entitled to the “equal protection” of the laws. But that does not mean that every case applying the Equal
Protection Clause uses the same analysis or that those “long-standing” principles require the same results in all
cases.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 11
An examination of the government’s proposed weighing of each of the Mathews factors
demonstrates that the government’s argument that Mathews tilted in its favor was reasonable.
Starting with the private-interest factor, the government never argued that this Mathews factor
did not favor plaintiffs. Instead, it simply argued that this factor should be given less weight
because plaintiffs’ interests were “tempered” by alternative procedures for obtaining new
benefits. 17-5206 CA6 R.21, Gov’t. Brief, at 38. The Hicks majority concluded that the
government’s argument was incorrect, but in doing so, it did not cite to any binding case law that
demonstrated that the government’s argument on the first factor was wrong. Hicks, 909 F.3d at
802–03. Instead, it based its decision on its own weighing of the private interest. Id. And as
Judge Rogers showed in his dissent, a reasonable person could have placed less weight on this
factor than did the majority. Id. at 816–17 (Rogers, J., dissenting). Given that the government
did not argue that the plaintiffs’ interests were non-existent, the government’s position on this
factor was not unreasonable.
Similarly, the government’s argument on the governmental interest factor—that there
was an interest in conserving public resources—was reasonable. While the majority was not
convinced that this factor justified the government’s procedure, the government’s brief cited to
Supreme Court case law acknowledging that the government had an interest in conserving
resources, see Mathews, 424 U.S. at 348, circuit case law stating that social security
adjudications are typically non-adversarial, see Flatford v. Chater, 93 F.3d 1296, 1306 (6th Cir.
1996), and multiple district court cases holding that full hearings on the question of fraud would
significantly burden the government, see, e.g., Robertson v. Berryhill, No. CV 3:16-3846, 2017
WL 1170873, at *9 (S.D. W. Va. Mar. 28, 2017). Based on this wealth of supporting case law,
the government’s contention that it had substantial interests was not unreasonable.
Finally, the government’s argument regarding the risk of erroneous deprivation—while
the closest to being unreasonable—was not so weak that no reasonable person could accept it.
The government’s argument was, essentially, that its current procedures minimized the risk of
erroneous deprivation, especially in light of the low standard of review. The panel majority
noted that this argument was foreclosed by Hamdi, but plaintiffs never argued in their briefing
that Hamdi supported their argument on this Mathews factor. Hicks, 909 F.3d at 800–02.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 12
Therefore, it was not unreasonable for the government to fail to counter it. Furthermore, as
Judge Rogers showed, a reasonable person could believe that the risk of erroneous deprivation
was low because of the standard of review and the allegedly low probability that these reports
would change the outcome of the redetermination hearings. Hicks, 909 F.3d at 819–21 (Rogers,
J., dissenting). Although these arguments did not prevail, a reasonable person could have
believed them correct given the flexibility of the Mathews standard and the novelty of this issue.
This claim is more akin to one that “the government lost because an unsettled question
was resolved unfavorably” than one that “the government lost because it vainly pressed a
position ‘flatly at odds with the controlling case law.’” Taucher, 396 F.3d at 1174 (quoting Am.
Wrecking Corp. v. Sec’y of Labor, 364 F.3d 321, 326–27 (D.C. Cir. 2004)). Or, at least, the
district courts did not abuse their discretion in reaching that conclusion. Plaintiffs argue that the
government’s argument was not substantially justified because “all three factors of the balancing
test favored plaintiffs” and this issue was not a “close call.” CA6 R.40, Reply Br., at 24. But the
standard is not whether the case was a “close call.” It is whether a reasonable person could
believe that the government’s argument was correct. An examination of the precedent cited by
the government in support of its argument, the rationale for the majority’s decision, and
“objective indicia” of reasonableness—such as Judge Rogers’s dissenting opinion and the fact
that district courts across the country have split on this issue—demonstrates that the
government’s position on the due process issue was substantially justified.
B.
Next, we move to the government’s arguments on the APA claim. Here, the government
maintained that it had complied with the requirements of the APA and had not acted arbitrarily
and capriciously by differentiating between fraud investigated by the OIG and fraud investigated
by the SSA. While the government may not have always presented its arguments on this issue in
the most cogent manner, when the substance of the government’s arguments is considered, a
reasonable person could have believed that the government’s position was correct. Therefore,
the district courts did not abuse their discretion in finding that government’s arguments regarding
the APA claims were reasonable.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 13
1.
The government’s argument that it had complied with the APA’s formal adjudication
requirements, or, in the alternative, that it did not have to comply with those requirements, was
substantially justified. In the underlying litigation, the government primarily argued that its
redetermination procedures had complied with the APA’s formal adjudication requirements.
Specifically, it claimed that it had complied with all of the procedures required by 42 U.S.C.
§ 405(b)(1), “[a]nd because the protections provided by § 405(b)(1) are co-extensive with the
APA’s provisions on formal adjudications . . . the redetermination process complied with those
provisions as well.” 17-5206 CA6 R.36, Gov’t. Brief, at 46–47 (internal citation omitted) (citing
Richardson v. Perales, 402 U.S. 389, 408 (1971). The government now contends that it also
argued to the original panel that § 405(b)(1) did not apply to redeterminations, and therefore, the
APA did not require a redetermination hearing.
The majority rejected these arguments. It first concluded that the government had not
properly raised the argument that it did not have to comply with § 405(b)(1) or provide a hearing.
Hicks, 909 F.3d at 804 n.5. Additionally, the majority rejected the government’s contention that
it had complied with the APA’s formal adjudication requirements. Id. at 805. The dissent
disagreed with the majority on both points. Id. at 823–24, 824 n.8 (Rogers, J., dissenting).
Despite the fact that the government’s arguments were rejected, a reasonable person could have
believed them to be correct.
First, a reasonable person could have agreed with the government’s argument that it did
not have to comply with § 405(b)(1) or provide a hearing. Plaintiffs argue that the fact that the
panel found that the government did not raise this argument “dooms” the government’s argument
on this point because “[h]aving failed to make the argument in Hicks, the government cannot
now point to the argument as evidence that its position was substantially justified.” CA6 R.40,
Reply Br., at 18; see also CA6 R.31, Appellant Br., at 36–37. But plaintiffs misconstrue the
question at hand. The question is not whether the panel found that the government raised this
argument; it is whether a reasonable person could have believed that the government raised this
argument. See Pierce, 487 U.S. at 566 n.2. Given that the government explicitly stated in its
brief before the original panel that a full hearing before an ALJ “‘is not mandated by the specific
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 14
section regarding redeterminations,’ but the redetermination process as implemented by SSA
nonetheless provides the protections guaranteed by § 405(b)(1),” a reasonable person could have
believed that the government raised the argument that it did not have to comply with § 405(b)(1).
See 17-5206 CA6 R.36, Gov’t. Brief, at 46–47 (emphasis added). This conclusion is bolstered
by the fact that the case cited by the government in support of this statement “recognize[d] that
[a redetermination] hearing is not mandated by the specific section regarding redeterminations.”
Id. (citing Robertson, 2017 WL 1170783, at *13, 12 n.13. Additionally, the government clearly
raised this argument in the district court proceedings, so a consideration of the government’s
position “as a whole” may take this argument into account. See Memphis Health Ctr., 526 F.
App’x at 614 (noting that courts should look at the position the government took during “all
phases of civil litigation”). On the merits of this argument, a reasonable person could have
believed the government’s position was correct for the reasons laid out in Judge Rogers’s
dissent. Hicks, 909 F.3d at 823–24.
Second, a reasonable person could have agreed with the government’s position that it had
done all that was required by the APA’s formal adjudication provisions. In the underlying
litigation, the government argued that because (1) it complied with the requirements of
§ 405(b)(1), and (2) “the protections provided by § 405(b)(1) are co-extensive with the APA’s
provisions on formal adjudication,” it had done all that was required by the APA’s formal
adjudication requirements. CA6 R.36, Appellee Br., at 42. The majority rejected this argument
because it believed that the second step of the syllogism was based on a misreading of the
Supreme Court case Richardson v. Perales, which the government cited in its brief. In Perales,
the claimant argued that he was entitled to cross-examination during a disability claim
proceeding because “the Administrative Procedure Act, rather than the Social Security Act,
governs the processing of claims.” 402 U.S. at 408. The Supreme Court stated: “[w]e need not
decide whether the APA has general application to social security disability claims, for the social
security administrative procedure does not vary from that prescribed by the APA. Indeed, the
latter is modeled upon the Social Security Act.” Id. at 409. It then “explained that the
protections laid out in § 556(d) of the APA ‘conform, and are consistent with, rather than differ
from or supersede, the authority given the Secretary by the Social Security Act[].’” Hicks,
909 F.3d at 805 n.6 (quoting Perales, 402 U.S. at 409). The government read the Supreme
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 15
Court’s statement in Perales that “the social security administrative procedure does not vary
from that prescribed by the APA” broadly and argued that the two Acts were coterminous. The
majority disagreed and stated that the Supreme Court’s focus in Perales was solely on § 556(d),
and, therefore, the statement that “the social security administrative procedure does not vary
from that prescribed by the APA” was limited to § 556(d). Hicks, 909 F.3d at 805 n.6.
The majority’s reading of Perales is the better (and correct) reading, but that does not
necessarily mean that the government’s position was unreasonable. The government construed
the Supreme Court’s language broadly—perhaps more broadly than it was meant—but
arguments advocating for a broad or narrow interpretation of case law are a common and
welcome occurrence in an adversarial system. This language was not so clearly limited to its
facts that no reasonable person could have believed it applied to this case. See Escobar Ruiz v.
INS, 838 F.2d 1020, 1026 (9th Cir. 1988) (seeming to interpret Perales broadly, albeit in
passing). Additionally, as plaintiffs themselves noted in the district court, this was a matter of
“first impression.” 17-5206 DE 22, Pl. Mot. for Partial Summ. J., PageID 1071. Therefore, the
government had greater discretion to craft its arguments than in a case governed by settled law.
After taking all of these circumstances into account, we conclude that the government’s
arguments regarding the APA’s formal adjudication requirements were reasonable.
2.
A reasonable person could also find that the government’s argument that it did not act
arbitrarily and capriciously was correct. In the underlying litigation, the government first
contended that plaintiffs had forfeited their arbitrary and capricious claims by failing to raise
them in the district courts. 17-5206 CA6 R.36, Gov’t. Brief, at 48–49. It also argued that, even
if plaintiffs had not forfeited these claims, the government did not act arbitrarily and capriciously
because cases involving “beneficiaries whose redeterminations are triggered by referral from a
law enforcement agency and those whose redeterminations are triggered by SSA findings do not
present ‘like cases.’” Id. at 50. The panel majority found that plaintiffs had not forfeited their
arbitrary and capricious claim and rejected the government’s arguments because the government
could not rely on post hoc rationalizations to justify the differential treatment and, even if it
could, those post hoc rationalizations were insufficient. Hicks, 909 F.3d at 806–09
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 16
Although the Hicks majority found that plaintiffs had preserved their arbitrary and
capricious claim, we recognize that plaintiffs had only raised this argument in the district court in
a footnote and a sentence (contained in a section of plaintiffs’ brief titled “additional context”)
that said that the government’s “arbitrary” actions “suggest[ed] a due process of Administrative
Procedure Act violation.” Hicks, 909 F.3d at 807 n.10 (citing plaintiffs’ briefings below). The
government’s position that plaintiffs had forfeited this argument was, therefore, reasonable.
Additionally, on the merits of this argument, the majority turned to an out of circuit case to
support its holding that treating cases involving OIG-instigated claims differently than cases
involving SSA-instigated claims was arbitrary and capricious. See id. at 807 (citing Miller v.
Bond, 641 F.2d 997 (D.C. Cir. 1981)). While exclusive reliance on persuasive precedent does
always not mean that the government’s position was substantially justified, the lack of binding
authority coupled with the government’s forfeiture argument means that a reasonable person
could have believed that the government had the better of this argument.
C.
Unlike its arguments on the due process claim and the APA claim, the government’s
argument that the remand to the ALJ should have been under sentence six of § 405(g) was not
substantially justified because it was foreclosed by binding Supreme Court and circuit precedent.
When a district court remands a case to the Social Security Administration, it must do so under
one of two sentences in 42 U.S.C. § 405(g). A sentence four remand is proper when the court is
entering “a judgment affirming, modifying, or reversing the decision of the Secretary, with or
without remanding the cause for a rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)
(quoting 42 U.S.C. § 405(g)). Sentence four, therefore, applies to cases in “which the Secretary
has failed to provide a full and fair hearing, to make explicit findings, or to have correctly
appl[ied] the law and regulations.” Id. at 101 (citing H.R. Rep. No. 96-100). In contrast, a
sentence six remand is proper when the court “does not affirm, modify, or reverse the Secretary’s
decision; it does not rule in any way as to the correctness of the administrative determination.
Rather, the court remands because new evidence has come to light that was not available to the
claimant at the time of the administrative proceeding[.]” Id. at 98.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 17
Here, the government argued that a remand was proper under sentence six, not sentence
four, because “it would be premature to rule on the correctness of the ALJ’s redetermination
decision.” See, e.g., 0:16-cv-62 (E.D. Ky.) DE 29, Mot., PageID 759, 764. The problem with
this argument is that it runs head-first into binding precedent. As the Supreme Court recognized,
sentence four remand is proper when “the Secretary has failed to provide a full and fair hearing”,
see Melkonyan, 501 U.S. at 101, which is exactly what the majority held the government had
failed to provide in this case, see Hicks, 909 F.3d at 804 (holding that the hearings violated due
process). The government also argued that remand under sentence six was proper because this
was a case involving “new evidence.” See, e.g., 0:16-cv-62 (E.D. Ky.) DE 29, Mot., PageID
765. But as plaintiffs point out, there is Sixth Circuit precedent stating that a sentence four
remand does not preclude the introduction of new evidence in front of the ALJ. Faucher v. Sec’y
of Health & Hum. Servs., 17 F.3d 171, 174–75 (6th Cir. 1994) (“[The party’s] argument that
when additional evidence is required, a case may be remanded to the Secretary only pursuant to
sentence six . . . is clearly erroneous.”). The only precedent that the government cites to counter
that holding is inapposite. See DeLong, 748 F.3d at 725 n.3 (discussing what evidence the
district court can consider under both types of remand). Because the government’s argument on
this issue was contrary to binding Supreme Court and Sixth Circuit precedent, it was not
substantially justified. See Perket, 905 F.2d at 135.
D.
Now that we have considered each of the government’s arguments individually, we must
consider them together. Looking at the arguments holistically, we hold that the district courts
did not abuse their discretion in concluding that the government’s position was substantially
justified.
First, the “objective indicia” of reasonableness point towards a finding that the
government acted reasonably. See Pierce, 487 U.S. at 568–69 (discussing objective indicia).
For example, Judge Rogers issued a well-reasoned dissent disagreeing with the panel majority’s
holdings that the government had violated the Due Process Clause and the APA. See EEOC v.
Clay Printing Co., 13 F.3d 813, 816 (4th Cir. 1994) (noting that the dissenting judge’s views
should be “considered” but not given dispositive weight). While the presence of a dissent may
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 18
not always demonstrate that the government’s position was substantially justified, the deliberate
and thoughtful nature of Judge Rogers’s reasoning signals that reasonable minds could disagree
on these issues. Courts across the country have also divided on the correct resolution of these
cases. Compare, e.g., Taylor v. Berryhill, No. 1:16-cv-44, 2018 WL 1003755, at *11, 18 (W.D.
Va. Feb. 21, 2018) (no due process or APA violations); Smith v. Comm’r of Soc. Sec., No. 6:17-
cv-1084, 2017 WL 5256872, *5 (M.D. Fla. Nov. 13, 2017) (no due process violation), with, e.g.,
Jaxson v. Saul, 970 F.3d 775, 778 (7th Cir. 2020) (finding that the plaintiff had to be given the
right to contest the fraud finding, but not on due process grounds and only in writing); Kirk v.
Berryhill, 388 F. Supp. 3d 652, 662 (D.S.C. 2019) (finding due process violation), appeal
docketed, No. 19-1989 (4th Cir. Sept. 11, 2019). While a “string of successes” would be
stronger evidence of the reasonableness of the government’s position than a mixed bag of results,
a split in the courts still leans in the government’s favor. Cf. Pierce, 487 U.S. at 569.
Additionally, two out of three district courts in the underlying litigation agreed that the
government had not violated the Due Process Clause or the APA. See Hicks, 909 F.3d at 796.
Although we are mindful of the Supreme Court’s direction not to place too much weight on these
objective indicia, they bolster the conclusion that the government’s position was substantially
justified.
Second, as the government points out, this case involved numerous issues of first
impression. It was also the first case arising out of Conn’s fraud and the subsequent
redetermination hearings to be decided by a court of appeals. Since then, other courts of appeals
have agreed with this court’s conclusion that the government’s redetermination procedures were
not sufficient, but the government did not have the benefit of any of those decisions when it took
its position in this case. See, e.g., Jaxson v. Saul, 970 F.3d at 778. Given the novelty of both the
legal claims and the subject matter, the government had more leeway to construct its arguments.
See Roanoke River Basin, 991 F.2d at 139 (cautioning courts that the EAJA was not designed to
“chill the government’s right to litigate.”).
Third, and most importantly, the government’s arguments on the “prominent” issues in
the litigation were reasonable. Given that the government raised reasonable arguments as to why
it had not allowed plaintiffs to challenge the fraud finding, its decision not to allow them to do so
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 19
was substantially justified. The only issue on which we find the government did not take a
reasonable position was the sentence four/sentence six remand issue. That issue was
significantly less important than the other issues involved in the case, and it is easily
disentangled from the due process and APA claims. See Memphis Health Ctr., 526 F. App’x at
615. Therefore, the unreasonableness of the position on the remand issue does not undermine
the reasonableness of the government’s position as a whole, and we hold that the district courts
did not abuse their discretion in finding that the government’s position was substantially
justified.
Glenn v. Commissioner of Social Security does not compel the opposite conclusion. See
763 F.3d 494 (6th Cir. 2014). In Glenn, the district court held that the government’s position
defending an ALJ determination was substantially justified because “more than half” of the
errors that the plaintiff raised lacked merit. Id. at 497. This court held that the record still
required reversing the ALJ’s decision for five independent reasons. Id. at 499. And on each of
those five issues, the government had not taken a reasonable position because the position was
either plainly contrary to binding law or the facts in the record. Id. at 499–500.
Plaintiffs argue that Glenn stands for the proposition that a “string of [five] losses” in the
same litigation (i.e. a finding that the government was wrong on five independent issues)
demonstrates a lack of substantial justification. CA6 R.31, Appellant Br., at 26–28. To the
extent that plaintiffs argue that multiple losses provide “objective indicia” that the government’s
position was not substantially justified, we agree. However, Glenn does not mean that simply
losing on multiple grounds is sufficient to show that a position was not substantially justified.
Instead, as the analysis in Glenn itself shows, the focus remains on the merits and reasonableness
of each argument, not a tallying of losses or wins. See 763 F.3d at 499–500; see also id. at 498
(“Pierce does not reduce the ‘substantially justified’ standard to a matter of comparing the
number of successful claims to unsuccessful claims in a single appeal.”) Therefore, while the
Hicks majority’s holding that remand was required for multiple reasons is “objective indicia” of
unreasonableness, it does not change the conclusion that the district courts did not abuse their
discretion.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 20
E.
Plaintiffs also argue that the district courts’ decisions must be reversed because the
district courts relied on “errors of law.” CA6 R.31, Appellant Br., at 28; CA6 R.40, Reply Br., at
27. As plaintiffs point out, the question of whether the district courts committed errors of law is
reviewed de novo, not for abuse of discretion, and they contend that the district courts erred as a
matter of law in four ways. Lawrence, 735 F.3d at 405. First, they maintain that the district
courts erred as a matter of law by “merely tallying decisions” in contravention of Pierce and
Wall. CA6 R.31, Appellant Br., at 29. Second, they claim that the district courts ignored or
contradicted Hicks. Third, they contend that the district courts relied on an argument that the
government did not make, which is not permitted under the EAJA. Fourth, they argue that the
district courts failed to consider the government’s position “as a whole” in violation of Pierce
and Memphis Health Center. We find none of these arguments persuasive.
Plaintiffs’ first argument—that the district courts erred as a matter of law by placing too
much weight on “objective indicia” of reasonableness—is unpersuasive because how a district
court chooses to balance relevant factors is, with some limitations, within its discretion. The
abuse of discretion standard recognizes that the application of general standards—such as the
substantially justified standard—may lead different jurists to different results. See Pierce,
487 U.S. at 562 (“[T]he question whether the Government’s litigating position has been
‘substantially justified’ is precisely such a multifarious and novel question, little susceptible, for
the time being at least, of useful generalization, and likely to profit from the experience that an
abuse-of-discretion rule will permit to develop.”). While there may be some cases in which a
district court’s weighing of a particular factor constitutes an error of law—such as when the
court completely ignores a factor that it has been instructed to consider or relies on a factor that it
has been instructed is not relevant—we must be careful not to define the class of errors of law so
broadly as to effectively turn the abuse of discretion standard into de novo review. Cf., e.g.,
Jackson v. Law Firm of O’Hara, 875 F.2d 1224, 1230 (6th Cir. 1989) (noting that the wholesale
failure to consider a necessary factor constitutes abuse of discretion).
Here, the district courts recognized that there were “objective indicia” of
reasonableness—such as the presence of a dissenting opinion and other district courts that had
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 21
agreed with the government’s position—that indicated that the government’s position was
substantially justified. Perkins, 2020 WL 109808, at *3; Reed, 2019 WL 6119220, at *3;
Griffith, 2019 WL 5191831, at *7. However, none of the district courts stated that they were
relying exclusively (or even primarily) on the presence of objective indicia of reasonableness.
Each of them noted that the merits were the “most important” part of the analysis (although the
Reed and Perkins courts did qualify this statement with the word “perhaps”). Perkins, 2020 WL
109808, at *4; Reed, 2019 WL 6119220, at *4; Griffith, 2019 WL 5191831, at *7 (focusing
almost the entire discussion on the merits, although not explicitly stating that the merits were the
“most important” part of the analysis). Based on these statements and our review of the entirety
of the district courts’ opinions, we cannot say that the district courts’ weighing of the relevant
factors were so deficient as to constitute errors of law.2
Plaintiffs’ second argument is that the district courts erred as a matter of law in failing to
give Hicks proper weight. In making this argument, plaintiffs once again conflate the panel
majority’s conclusion that plaintiffs had the better argument with a conclusion that no argument
to the contrary was reasonable. However, it is possible both to afford Hicks proper weight and to
conclude that the government’s position was reasonable. See supra Part IV.A. The district
courts did just that, and their analyses do not leave us “firmly convinced” that an error was made.
See Damron, 104 F.3d at 855.
Plaintiffs’ third argument is that the district courts erred in relying on an argument that
the government did not make—the argument that the government was not required to comply
with the formal adjudication requirements while conducting redeterminations. But as discussed
above, a reasonable person could have believed that the government raised that argument before
the panel, and it certainly raised it at the district court level. See supra Part IV.B.1. Therefore,
the district courts properly relied on this argument when considering whether the government’s
position was reasonable.
2Plaintiffs also gloss over the fact that this is not a case in which “one court” has agreed with the
government’s position. Cf. Pierce, 487 U.S. at 569. Two district courts in this circuit, a dissenting judge, and
multiple out-of-circuit district courts have all agreed with the government’s position. Therefore, the district courts
were entitled to place more weight on these objective indicia than they would have been in a case in which “one
court” had agreed with the government.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 22
Plaintiffs’ final argument—that the Reed and Perkins courts failed to consider the
government’s position as a whole—fails because the courts’ statements to which plaintiffs object
were clearly dicta. See, e.g., Reed, 2019 WL 6119220, at *5 (“The Court finds that, even if
arguendo the Government’s position on the APA issue that was found to be arbitrary and
capricious is not substantially justified, the other more prominent claims under the Due Process
Clause and APA, including those originally raised by Plaintiffs in this litigation, were
substantially justified.” (emphasis added)). Those statements do not demonstrate that the district
courts erred as a matter of law.
V.
For the foregoing reasons, we affirm the district courts’ denial of plaintiffs’ motions for
attorney’s fees under the EAJA.
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 23
_________________
DISSENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent from the
denial of attorney fees to plaintiffs because I believe that the majority’s holding is counter to
Congress’s intent in passing the Equal Access to Justice Act (“EAJA”) and that the government’s
position in Hicks v. Commissioner of Social Security, 909 F.3d 786 (6th Cir. 2018), was not
substantially justified.
The majority’s reasoning leads to a result that is directly contrary to Congress’s goal in
enacting the Equal Access to Justice Act. The EAJA reflects Congress’s concern that the prior
“American rule,” in which litigants paid their own attorney fees, “deterred [individuals] from
seeking review of or defending against unreasonable governmental action because of the expense
involved.” H.R. Conf. Rep. No. 1434, 96th Cong., 2d Sess. 21 (1980), reprinted in, 1980
U.S.C.C.A.N. 5003, 5010. Congress intended the EAJA “to diminish this deterrent effect by
providing in specified situations for an award of attorney fees and other costs.” Id. The
“substantially justified” standard was “an acceptable middle ground between an automatic award
of fees and the restrictive standard proposed by the Department of Justice.” H.R. Rep. No. 1418,
96th Cong., 2d Sess. 14 (1980), reprinted in, 1980 U.S.C.C.A.N. 4984, 4993. The Senate
Committee Report remarked that the standard that “prevailing [parties] should recover fees only
upon a finding that [the Government’s] action was frivolous, unreasonable or without
foundation” is “inappropriate” because it “would not overcome the strong disincentives to the
exercise of legal rights which now exist in litigation with the Government.” S. Rep. No. 253,
96th Cong., 1st Sess. 6 (1979). The substantially justified standard “address[es] the problems of
abusive and harassing regulatory practices” and “is intended to caution agencies to carefully
evaluate their cases and not to pursue those which are weak or tenuous.” H.R. Rep. No. 1418 at
14, 1980 U.S.C.C.A.N. at 4993.
The majority deviates from this “acceptable middle ground” and precludes attorney fees
whenever the government can muster a passable argument. Government attorneys are unlikely
to present arguments without any basis in law or fact; they are well-resourced, repeat players in
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 24
this court. Yet, as the most recent report on the EAJA shows, federal agencies reported 8,334 fee
awards totaling $58,779,452.84 paid under the EAJA. Admin. Conf. of the United States, Equal
Access to Justice Act Awards Report to Congress Fiscal Year 2019, at 3 (Mar. 2020).
The Supreme Court has interpreted “substantially justified” to require that the
government’s position be “‘justified in substance or in the main’—that is, justified to a degree
that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In
another formulation, the government’s position must have a “reasonable basis both in law and
fact.” Id. Of course, “[t]o be ‘substantially justified’ means . . . more than merely undeserving
of sanctions for frivolousness; that is assuredly not the standard for Government litigation of
which a reasonable person would approve.” Id. at 566. In essence, the substantially justified
standard is “a ‘think twice’ prescription that ‘stem[s] the urge to litigate irresponsibly.’”
Scarborough v. Principi, 541 U.S. 401, 416 (2004) (quoting Edelman v. Lynchburg Coll., 535
U.S. 106, 116 (2002)). Although “objective indicia,” such as “views expressed by other courts
on the merits of the Government’s position,” are relevant, this is not dispositive. Underwood,
487 U.S. at 569. “The Government bears the burden of proving that a given position was
substantially justified.” DeLong v. Comm’r of Soc. Sec. Admin., 748 F.3d 723, 725–26 (6th Cir.
2014).
Here, the district courts abused their discretion by concluding that the government’s
position was substantially justified because of earlier decisions, which we subsequently reversed,
and a dissent to our majority decision. The Supreme Court has made clear that “the fact that one
other court agreed or disagreed with the Government does not establish whether its position was
substantially justified.” Underwood, 487 U.S. at 569. Disagreement by certain district courts
with the merits decision of this court should not preclude plaintiffs from recovering attorney fees
when the government’s litigating position is unreasonable.1 Howard v. Barnhart, 376 F.3d 551,
1After this panel’s decision in Hicks, nearly all of courts that have examined the SSA’s redetermination
have found our decision to be persuasive and agreed that the SSA’s redetermination process violated plaintiffs’ due
process rights or the Administrative Procedure Act. Compare Jaxson v. Saul, 970 F.3d 775, 778 (7th Cir. 2020)
(holding that the SSA’s process violated the Administrative Procedure Act and declining to reach the constitutional
questions); Menendez v. Comm’r of Soc. Sec., No. 18-1962, 2020 WL 5075991, at *5 (D.P.R. Aug. 27, 2020)
(denying defendant’s motion to dismiss plaintiff’s procedural due process challenge to the SSA’s process); Kirk v.
Berryhill, 388 F. Supp. 3d 652, 662 (D.S.C. 2019), appeal docketed, No. 19-1989 (Sept. 11, 2019) (holding that the
SSA’s process violated plaintiff’s due process rights); Agosto v. Comm’r of Soc. Sec., No. 18-1271, 2019 WL
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 25
554 (6th Cir. 2004) (criticizing the district court for “overemphasiz[ing]” “that the administrative
law judge, magistrate and itself had all agreed with the denial of the disability benefits” when it
denied the applicant’s motion for attorney fees); see also United States ex rel. Wall v. Circle C
Constr., LLC, 868 F.3d 466, 471 (6th Cir. 2017) (concluding that the district court erred in
holding “that the government’s theory was reasonable simply because the court itself had twice
accepted the theory” when government’s position was not substantially justified on its merits).
We have held that the government’s position was not substantially justified even when one
member dissented from our decision on the merits of the government’s decision. See Guzzo v.
Thompson, 393 F.3d 652, 655 (6th Cir. 2004); Pablo Lorenzo v. Barr, 806 F. App’x 431, 434
(6th Cir. 2020); see also Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885
(8th Cir. 1995); E.E.O.C. v. Clay Printing Co., 13 F.3d 813, 816 (4th Cir. 1994).
Although there was disagreement among district courts on the merits of this case, the
government suffered a “string of losses” because we concluded in Hicks that the government’s
argument failed on the two due process claims, the two APA claims, and the nature of the
remand claim. See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (concluding
that because there were “five separate bases” for remand, this “string of losses” indicates that the
government’s position was not substantially justified). Cf. Amezola-Garcia v. Lynch, 835 F.3d
553, 555 (6th Cir. 2016) (holding that the government’s position was substantially justified in
part because we found most of the government’s arguments to be correct and remanded the
applicant’s case based on a “distinct” and less “prominent” issue).
6190612, at *5–6 (D.P.R. Nov. 20, 2019) (same); Nieves-Ocasio v. Comm’r of Soc. Sec., No. 18-1396, 2019 WL
5266890, at *6 (D.P.R. Oct. 17, 2019) (same); Sepulveda-Vega v. Comm’r of Soc. Sec., No. 17-1835, 2019 WL
4858800, at *7 (D.P.R. Sept. 30, 2019) (same); Alicea Gonzalez v. Comm’r of Soc. Sec., No. 18-1222, 2019 WL
4233925, at *12–13 (D.P.R. Sept. 6, 2019) (same); Rivera-Cepeda v. Comm’r of Soc. Sec., No. 18-1092, 2019 WL
4201573, at *12–13 (D.P.R. Sept. 5, 2019) (same); Picon-Gonzalez v. Comm’r of Soc. Sec. Admin., No. 18-1016,
2019 WL 4187701, at *16 (D.P.R. Sept. 4, 2019) (same), with Robertson v. Saul, No. CV 3:16-3846, 2020 WL
3036012, at *2 (S.D.W. Va. June 5, 2020) (rejecting the conclusion in Hicks and affirming its prior holding that the
SSA’s redetermination process did not violate plaintiff’s due process rights). Recently, a district court awarded
attorney fees to a former client of Eric Conn who had challenged the SSA’s redetermination process. Bryant v. Saul,
No. 1:17CV220, 2020 WL 7137874, at *5 (N.D. Ind. Dec. 7, 2020) (“Rather than give the claimants a chance to
argue that the medical evidence in their case honestly supported their claims, [the government] threw out the
evidence and required the claimants to, years later, present entirely new evidence. For [the government] to continue
to argue that this procedure was substantially justified borders on the unconscionable.”).
Nos. 19-6395 et al. Griffith et al. v. Comm’r of Soc. Sec. Page 26
The validity of the government’s arguments is fully addressed in our decision in Hicks.
In brief, the government’s litigating position that the redetermination process comported with
due process and the APA was not substantially justified. Our reasoning in Hicks follows from
long-standing Supreme Court precedent and is hardly novel. As this panel noted in Hicks,
“[l]ong before Mathews, the Supreme Court recognized the ‘immutable’ principle that ‘where
governmental action seriously injures an individual, and the reasonableness of the action depends
on fact findings, the evidence used to prove the Government’s case must be disclosed to the
individual so that he has an opportunity to show that it is untrue.’” 909 F.3d at 797 (quoting
Greene v. McElroy, 360 U.S. 474, 496 (1959)). The Supreme Court has continued to reaffirm
and apply this principle, including in Mathews. Id. (collecting cases). The government’s
argument contravened Supreme Court precedent, and therefore was not substantially justified.
See Perket v. Sec’y of Health & Human Servs., 905 F.2d 129, 135 (6th Cir. 1990). As to the
government’s argument that it was substantially justified in following the traditional three-part
Mathews v. Eldridge test, we applied the Mathews test in the alternative and concluded that all
three factors favored the plaintiffs. Hicks, 909 F.3d at 799–804. Finally, the redetermination
process clearly violated the APA because it failed to meet the standards for a formal hearing and
treated similarly situated applicants differently. Id. at 804–09.
For these reasons, I would conclude that the government’s position was not substantially
justified and would award the plaintiffs their attorney fees. I respectfully dissent.