Tom Hardisty v. Michael Astrue

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOM HARDISTY, 
Plaintiff-Appellant, No. 08-35919
v.
 D.C. No.
3:06-cv-01670-BR
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
October 9, 2009—Portland, Oregon
Filed January 25, 2010
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
1419
HARDISTY v. ASTRUE 1421
COUNSEL
Ralph Wilborn, Wilborn Law Office, P.C., Oregon City, Ore-
gon, argued the cause for the plaintiff-appellant. Tim Wilborn
filed the briefs.
Kathryn A. Miller, Assistant Regional Counsel, Office of the
General Counsel, Social Security Administration, Seattle,
Washington, argued the cause for the defendant-appellee and
filed the brief. Karin J. Immergut, United States Attorney,
Britannia I. Hobbs, Assistant United States Attorney, and
David Morado, Regional Chief Counsel, Social Security
Administration, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We consider whether a plaintiff may be awarded attorneys’
fees against the United States under the Equal Access to Jus-
tice Act with respect to issues not reached by a district court
in reversing a federal agency’s decision.
1422 HARDISTY v. ASTRUE
I
A
Tom Hardisty filed a claim for supplemental security
income in 2003, alleging disability from early 2001 based on
several serious degenerative disk diseases, attention deficit
hyperactivity disorder, and a mathematics learning disorder.
The Social Security Administration (“SSA”) denied his claim
initially and on reconsideration. An administrative law judge
(“ALJ”) then held a hearing on Hardisty’s claim in 2005. At
that hearing, the ALJ heard testimony from Hardisty, a lay
witness, numerous physicians, a vocational expert, and others.
In due course, the ALJ decided that Hardisty was not entitled
to benefits because, although he had a severe impairment, he
retained the residual functional capacity to perform jobs that
exist in significant numbers in the national economy.
After the SSA’s Appeals Council denied Hardisty’s request
for review, making the ALJ’s decision the final decision of
the SSA’s Commissioner, Hardisty sought judicial review on
numerous grounds. In 2008, the district court reversed and
remanded to the Commissioner for the calculation of an
award and benefits, ruling that substantial evidence did not
support the ALJ’s credibility determination with respect to
Hardisty’s testimony. A month after judgment on the merits,
Hardisty filed a request for attorneys’ fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), which was
denied.1 Hardisty timely appealed denial of fees.
B
The ALJ based his decision on an adverse credibility find-
ing against Hardisty. That finding rested on three grounds.
First, the ALJ reasoned that Hardisty’s criminal history,
1
The amount, $8,866.12, included the cost of filing the fees request. It
does not include the cost of this appeal.
HARDISTY v. ASTRUE 1423
involving numerous property crimes committed eighteen
years ago in California, constituted a basis for questioning his
credibility. Second, the ALJ noted that a medical report from
Dr. Melanie Vergara, one of Hardisty’s physicians, was
inconclusive regarding malingering. Third, the ALJ found that
Hardisty intentionally sought to mislead the SSA when he tes-
tified that he had driven only halfway to the hearing, a state-
ment contradicted by his own lay witness. Even though
Hardisty later corrected his testimony, the ALJ decided that
the record overall belied Hardisty’s credibility.
In challenging the Commissioner’s ruling, Hardisty first
argued that the government erred when it “improperly
rejected Plaintiff’s testimony.” He also raised several other
arguments, including that the government improperly rejected
lay witness testimony and Dr. Vergara’s opinion, improperly
evaluated residual functional capacity, posed an improper
hypothetical to the vocational expert, and failed appropriately
to question the vocational expert.
The district court ruled that the Commissioner had not pro-
vided clear and convincing reasons for discrediting Hardisty’s
testimony as required by Cotton v. Bowen, 799 F.2d 1403 (9th
Cir. 1986) (per curiam). Specifically, the court explicitly
rejected each of the government’s three reasons for discredit-
ing Hardisty’s testimony. With respect to the first reason,
Hardisty’s criminal history, the court ruled Hardisty’s crimes,
which did not involve dishonesty and occurred more than
eighteen years prior to the hearing, too “remote” to be a clear
and convincing reason to discredit Hardisty. The court relied
on Federal Rule of Evidence 609, which allows for the admis-
sion of evidence of crimes involving dishonesty but not evi-
dence of crimes older than ten years without a further
balancing of probative value and prejudicial effect. With
respect to the second reason, evidence of malingering, the
court ruled that the government failed to identify what evi-
dence undermined the claimant’s complaints and failed to dis-
credit the doctors who provided evidence corroborating
1424 HARDISTY v. ASTRUE
Hardisty’s account. With respect to the third reason, the
inconsistency about driving, the court noted that Hardisty had
corrected his testimony on who drove to the hearing, thereby
resolving the conflict. The court then, pursuant to Varney v.
Secretary of Health and Human Services, 859 F.2d 1396,
1401 (9th Cir. 1988), remanded for the calculation and award
of benefits.
C
In ruling on the subsequent EAJA request, the court first
addressed the issue on which Hardisty’s claim had been
remanded, concluding that the Commissioner’s position was
“substantially justified” and thus not a basis for EAJA fee-
shifting. 28 U.S.C. § 2412(d)(1)(A). The court observed that
the ALJ’s reliance on Hardisty’s criminal history, though con-
trary to the Federal Rules of Evidence, was not unlawful
because such Rules do not apply to administrative proceed-
ings. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 n.4 (9th
Cir. 2005). The court concluded, furthermore, that there was
“some basis” for the ALJ’s finding of malingering because of
Dr. Vergara’s report and that the ALJ’s interpretation of the
testimony regarding driving, while erroneous, had “some
basis in the record.” Thus, the court ruled, the Commission-
er’s position was substantially justified and fee-shifting was
not appropriate.
The court next addressed Hardisty’s argument that fees
should be awarded for the government positions that Hardisty
challenged but that it did not address when it originally
reviewed the case. Those positions too, according to Hardisty,
were not substantially justified. The court, however, declined
to award fees on these issues in the absence of the identifica-
tion of any authority, including circuit precedent, requiring it
to do so.
HARDISTY v. ASTRUE 1425
II
On appeal, Hardisty first argues that fees should be
awarded for those agency positions that Hardisty challenged
but that the district court did not decide.
A
[1] As always in cases of statutory interpretation, we begin
with the text of the statute. 28 U.S.C. § 2412. The text is par-
ticularly important in this case because the Supreme Court has
refused to allow the award of attorneys’ fees without clear
statutory authorization. Alyeska Serv. Pipeline Co. v. Wilder-
ness Soc’y, 421 U.S. 240, 250 (1975) (citing Day v. Wood-
worth, 54 U.S. (13 How.) 363 (1852); Oelrichs v. Spain, 82
U.S. (15 Wall.) 211 (1872); Flanders v. Tweed, 82 U.S. (15
Wall.) 450 (1873); Stewart v. Sonneborn, 98 U.S. 187 (1879);
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.
714 (1967); F.D. Rich Co. v. United States ex rel. Industrial
Lumber Co., 417 U.S. 116 (1974)); see Ruckelshaus v. Sierra
Club, 463 U.S. 680, 686 (1983) (“Given all the foregoing, we
fail to find in [the statute] the requisite indication that Con-
gress meant to abandon historic fee-shifting principles . . . .”);
Ardestani v. I.N.S., 502 U.S. 129, 138 (1991) (“[W]e cannot
extend the EAJA to administrative deportation proceedings
when the plain language of the statute . . . constrain[s] us to
do otherwise.”); Buckhannon Bd. & Care Home, Inc. v. West
Virginia Dept. of Health & Human Res., 532 U.S. 598, 610
(2001) (“In Alyeska, we said that Congress had not ‘extended
any roving authority to the Judiciary to allow counsel fees as
costs or otherwise whenever the courts might deem them war-
ranted.’ ”) (internal citations omitted). That is in part because,
in reviewing claims for attorneys’ fees, “[o]ur basic point of
reference is the ‘American Rule.’ ” Ruckelshaus, 463 U.S. at
684 (citing Alyeska, 421 U.S. at 247). That rule, which pro-
vides that “the prevailing litigant is ordinarily not entitled to
collect a reasonable attorneys’ fee from the loser,” Alyeska,
421 U.S. at 247, has dominated the American court system
1426 HARDISTY v. ASTRUE
since its beginning, see id. at 271 (remarking that the Ameri-
can rule is “deeply rooted in our history”).
[2] The EAJA creates an exception to the American rule.
28 U.S.C. § 2412. It authorizes federal courts to award attor-
neys’ fees, court costs, and other expenses when a party pre-
vails against the United States, although fee-shifting is not
mandatory. United States v. 313.34 Acres of Land, 897 F.2d
1473, 1477 (9th Cir. 1989). The statute provides that
Except as otherwise specifically provided by statute,
a court shall award to a prevailing party other than
the United States fees and other expenses, in addi-
tion to any costs awarded . . . , incurred by that party
in any civil action . . . , including proceedings for
judicial review of agency action, brought by or
against the United States in any court having juris-
diction of that action, unless the court finds that the
position of the United States was substantially justi-
fied or that special circumstances make an award
unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added).2 The term “ ‘po-
sition of the United States’ means, in addition to the position
taken by the United States in the civil action, the action or
failure to act by the agency upon which the civil action is
based.” 28 U.S.C. § 2412(d)(2)(D).
[3] Nothing in these provisions extends fee-shifting to
issues not adjudicated. Section 2412(d)(1)(A) provides no
indication that attorneys’ fees should be awarded with respect
to positions of the United States challenged by the claimant
but unaddressed by the reviewing court. Nor does the defini-
tion clause in Section 2412(d)(2)(D) support fee-shifting. That
clause was amended to its current form in 1985 to focus
2
The government has the burden of proving its positions were substan-
tially justified. Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995).
HARDISTY v. ASTRUE 1427
courts on both the government’s litigation position and the
agency’s ruling. Comm’r, INS v. Jean, 496 U.S. 154, 159
(1990). In the absence of clear statutory text authorizing fee-
shifting, we decline to become a “roving authority” awarding
attorneys’ fees. Buckhannon, 532 U.S. at 610.
1
There are good reasons for denial of attorneys’ fees in situ-
ations regarding which the EAJA is silent. First, “[t]he EAJA
renders the United States liable for attorney’s fees for which
it would not otherwise be liable, and thus amounts to a partial
waiver of sovereign immunity.” Ardestani, 502 U.S. at 137.
“Waivers of immunity,” of course, “must be construed strictly
in favor of the sovereign, and not enlarge[d] . . . beyond what
the language requires.” Ruckelshaus, 463 U.S. at 685-86
(internal citations and quotation marks omitted) (citing
Alyeska, 421 U.S. at 267-68).
The Supreme Court has repeatedly interpreted attorneys’
fees statutes narrowly because of this concern. In Ardestani,
for example, the Court reasoned that its interpretation of the
EAJA as not applying to administrative deportation proceed-
ings was “reinforced . . . by the limited nature of waivers of
sovereign immunity [which] must be strictly construed in
favor of the United States.” Id. at 137. Similarly, in Ruckel-
shaus, the Court interpreted an attorneys’ fee statute to require
that a party prevail because “[i]n determining what sorts of
fee awards are appropriate, care must be taken not to enlarge
[the statute’s] waiver of immunity beyond what a fair reading
of the language of the section requires.” 463 U.S. at 686
(internal quotation marks omitted). And in Alyeska, the Court
reversed an award of attorneys’ fees absent statutory authori-
zation, noting the “well-known common-law rule that a sover-
eign is not liable for costs unless specific provision for such
liability is made by law.” 421 U.S. at 267-68 & n.42. Sover-
eign immunity concerns are especially relevant to interpreta-
1428 HARDISTY v. ASTRUE
tion of the attorneys’ fees provisions in the EAJA, which does
not broadly waive immunity. Ardestani, 502 U.S. at 137.
Such concerns are also particularly relevant to this case. An
award of attorneys’ fees without textual support in the EAJA,
as Hardisty desires, increases the exposure of the United
States treasury. Such a step, without clear statutory authoriza-
tion, we decline to take. We are especially hesitant because
extending the EAJA in this case constitutes an extreme depar-
ture from the American Rule, as the claimant failed to prevail
on the remaining issues on which he seeks fees. See Buckhan-
non, 532 U.S. at 598 (requiring judicial recognition of victory
to merit attorneys’ fees); Ruckelshaus, 463 U.S. at 680
(requiring some degree of success on the merits for fees).
2
Second, denial of attorneys’ fees in the face of silence in
the EAJA follows the command that “[a] request for attor-
ney’s fees should not result in a second major litigation.”
Buckhannon, 532 U.S. at 609 (quoting Hensley v. Eckerhart,
461 U.S. 424, 437 (1983)). Avoiding an interpretation that
“ensur[es] that the fee application will spawn a second litiga-
tion of significant dimension” is central to Supreme Court
jurisprudence on fee-shifting statutes. Tex. State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989).
In Buckhannon, for example, the Court rejected the “catalyst
theory” for assessing whether a party has prevailed — under
which a party may acquire fees if the suit was a catalyst for
change in the relationship between the litigants — because it
“is clearly not a formula for ‘ready administrability,’ ” 532
U.S. at 610 (quoting Burlington v. Dague, 505 U.S. 557, 566
(1992), as a “ ‘catalyst theory’ hearing would require analysis
. . . that ‘will likely depend on a highly factbound inquiry and
may turn on reasonable inferences from the nature and timing
of the defendant’s change in conduct.” Id. at 609. Similarly,
in Garland, the Court rejected the “central issue test” in favor
of the “significant issue” test because the former “promises to
HARDISTY v. ASTRUE 1429
mire district courts entertaining fee applications in an inquiry
which two commentators have described as ‘excruciating.’ ”
489 U.S. at 791. And in Hensley, the court framed its remand
to the district court to determine the proper amount of attor-
neys’ fees with the warning that, nonetheless, “[a] request for
attorney’s fees should not result in a second major litigation.”
461 U.S. at 437.
Hardisty’s interpretation would require just such extensive
collateral litigation. He asks that the district court review all
challenges by the claimant, no matter how numerous, to see
whether the government’s position lacked substantial justifi-
cation. And he asks that the district court do so even on those
issues that the district court chose not to reach in its original
decision. Such an inquiry requires the district court to decide
whether government positions it may not have evaluated at all
were in fact substantially justified. That puts the district court
in the position of conducting essentially de novo review of the
entire case for purposes of the fee litigation, contrary to the
command against “spawn[ing] a second litigation” of the
Supreme Court and to the far more streamlined “substantial
justification” review envisioned by the EAJA itself. We
decline to impose such burdens on district courts.
B
Hardisty argues that Flores v. Shalala, 49 F.3d 562 (9th
Cir. 1995), controls the outcome in this case in his favor. In
Flores, we held that district courts should focus on whether
the government’s position on the particular issue on which the
claimant earned remand was substantially justified, not on
whether the government’s ultimate disability determination
was substantially justified. Id. at 569. This holding, of course,
does not address the question of awarding attorneys’ fees on
issues the claimant raised but on which he did not earn
remand. Hardisty points to a footnote in Flores suggesting
that “attorney’s fees might be appropriate” in a situation like
his. Id. at 566 n.5. The problem with Hardisty’s argument is
1430 HARDISTY v. ASTRUE
that the footnote merely foreshadows the issue in this case
without suggesting a resolution, as the Flores court recog-
nized. Id. (“[W]e need not decide that [foreshadowed] ques-
tion here.”). And even if the footnote is suggestive of a
resolution, it is no more than dicta. Furthermore, if Flores
bears on the outcome of this case at all, it weighs against
awarding attorneys’ fees because, as the government argues,
the court in Flores focused on the issue on which the claimant
earned remand. Id.
Hardisty also raises policy concerns. He argues that on our
view the district court can ignore egregious ALJ errors,
reverse on a trivial matter, and thus deny attorneys’ fees. This
possibility conflicts, in Hardisty’s view, with the purpose of
the EAJA, which was designed to encourage litigation against
government action. See Equal Access to Justice Act, Exten-
sion and Amendment, H.R. Rep. No. 120, as reprinted in
1985 U.S.C.C.A.N. 132.
We do not find this policy argument persuasive. The first
problem with Hardisty’s argument is its view of the district
court. In Hardisty’s view, district judges can be disingenuous.
On the one hand, they carefully scrutinize agency reasoning
to ferret out erroneous agency rulings against claimants. They
labor to vindicate the claimants. On the other hand, they
manipulate the claimants’ arguments so as to reach only those
positions on which the government was both wrong and sub-
stantially justified. They thus stab the claimants in the back by
denying fees. This is an unrealistic, cynical, and perhaps para-
noid view of what district court judges do. We are satisfied
that district judges traditionally decide cases on the strongest
ground the plaintiff raises both for reasons of fairness, clarity,
and judicial efficiency and to protect their rulings on appeal.
A district judge who navigates the narrow path Hardisty envi-
sions wastes a great deal of judicial energy. And he exposes
himself to reversal by this court because walking the line
Hardisty posits — reversing the agency on closer questions
instead of obvious ones — by definition means that his rul-
HARDISTY v. ASTRUE 1431
ings are weaker than they need to be. We decline to take such
a warped view.
But even if Hardisty’s conception of the friendly but back-
stabbing federal judge were true, Hardisty’s view creates sev-
eral policy problems of its own. First, it requires district
courts to rule on every issue raised by the plaintiffs. But,
although litigants are the masters of their suits, judges are in
charge of resolving cases. Second, and relatedly, Hardisty’s
view encourages plaintiffs to raise and to brief every conceiv-
able issue, as the longer the list the more likely the district
court, which has to consider every issue raised, might stumble
upon a government position lacking substantial justification.
This, in turn, forces the government to expend more resources
defending itself in fee litigation, responding to every claim
raised by plaintiffs. The policy consequences of Hardisty’s
position are far from appealing. And proceeding down that
path is unjustified in light of the unlikelihood that a district
court judge would ever act as Hardisty hypothesizes.
[4] In the end, Hardisty’s appeal to policy concerns at most
confronts us with competing policy arguments. Such a debate
is not enough to overcome the absence of statutory text autho-
rizing supersession of the American Rule in this situation,
especially considering the judicially cognizable canons of
interpretation disfavoring the abrogation of sovereign immu-
nity and the spawning of collateral litigation. We therefore
decline to extend the EAJA to require review of those issues
raised by the plaintiff but not addressed by the district court.
III
Hardisty also challenges the district court’s ruling that the
government’s position on the issue it did consider, the adverse
credibility finding, was substantially justified. A position is
“substantially justified” if it has a “reasonable basis in law
and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The district court found that the government’s adverse credi-
1432 HARDISTY v. ASTRUE
bility finding, which rested on inferences regarding the claim-
ant’s convictions, the claimant’s testimony concerning who
drove to the hearing, and Dr. Vergara’s report not denying
malingering, was substantially justified. This is a question of
the application of law to fact. We review the district court’s
ruling for abuse of discretion. Lewis v. Barnhart, 281 F.3d
1081, 1083 (9th Cir. 2002).
[5] The government’s adverse credibility finding was sub-
stantially justified because all of the inferences upon which it
rested had substance in the record. The government’s reliance
on stale convictions was not inconsistent with the Federal
Rules of Evidence, which do not apply to administrative pro-
ceedings. Bayliss v. Barnhart, 427 F.3d 1211, 1218 n.4 (9th
Cir. 2005). It thus had a reasonable basis in law and fact. The
government’s interpretation of the inconsistency regarding
who drove to the hearing was also substantially justified, as
even Hardisty admitted his confused statements cast doubt on
his credibility. Finally, the government’s reliance on Dr. Ver-
gara’s report was substantially justified because that report
does question the severity of Hardisty’s symptoms.
[6] Nor is there merit to Hardisty’s argument that the gov-
ernment’s action lacked substantial justification because the
ALJ failed to tie his findings to specific evidence. On the con-
trary, the government pointed to the three pieces of evidence
noted to support his adverse credibility finding. The district
court did not abuse its discretion in finding substantial justifi-
cation.
IV
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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