Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.james C. Dugan, Plaintiff-appellant, v. Donna E. Shalala, Secretary of Health and Human Services,defendant-appellee, 996 F.2d 1219 (7th Cir. 1993)

Order

After our decision in Dugan v. Sullivan, 957 F.2d 1384 (7th Cir. 1992), the prevailing party applied for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. The district court denied the application, finding the Secretary's position "substantially justified." Appellate review is deferential, Pierce v. Underwood, 487 U.S. 552 (1988), and we conclude that the district judge did not abuse his discretion.

The Secretary cut off Dugan's disability benefits in 1985 after concluding that he had engaged in "substantial gainful activity"--distributing marijuana, an activity that reaped him more than $100,000 and several years in jail. Our prior opinion accepts this finding. Nonetheless, we held, an administrative decision reinstating disability benefits in 1983 precluded the termination of benefits in 1985 on the basis of pre-1983 earnings. In applying the doctrine of administrative res judicata, our opinion disagreed not only with the Secretary's decision but also with the district judge's opinion, which had affirmed the Secretary's order. To see that the Secretary's position was "substantially justified" one need do no more than compare the district judge's initial opinion with our opinion reversing it. Both state reasonable legal positions. The district court's opinion denying Dugan's application under the EAJA makes the essential points. To say more would be otiose.

AFFIRMED.