Martha Robinson, Plaintiff-appellee, v. Otis R. Bowen, M.d., Secretary, Department of Health Andhuman Services, Defendant-appellant, 867 F.2d 600 (10th Cir. 1989)

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US Court of Appeals for the Tenth Circuit - 867 F.2d 600 (10th Cir. 1989) Feb. 22, 1989

Appeal from the United Stated District Court for the District of Kansas, (D.C. Civil No. 84-1226-T) Frank G. Theis, District Judge.

Harry B. Mallin, Asst. Regional Counsel, Dept. of Health and Human Services, Kansas City, Mo. (Benjamin L. Burgess, Jr., U.S. Atty. for D. Kansas, Stephen K. Lester, Asst. U.S. Atty., and Paul P. Cacioppo, Chief Counsel, Dept. of Health and Human Services, with him on the brief), for defendant-appellant.

David H.M. Gray of Gragert, Hiebert, Gray & Woodring, Wichita, Kan., for plaintiff-appellee.

Before McKAY, BARRETT and BALDOCK, Circuit Judges.


We find that the trial court violated Rule 36.3 of the Rules of Court for the United States Court of Appeals for the Tenth Circuit in relying upon an unpublished opinion, Van Natter v. Secretary of Health, Education and Welfare, No. 79-1439, slip op. (10th Cir. 1981). Notwithstanding this error, we affirm the trial court's decision for the balance of reasons given in its opinion. 679 F. Supp. 1011 (D. Kan. 1988). We cannot say that the court abused its discretion in finding that the Secretary's position was not substantially justified for purposes of awarding attorney's fees to the prevailing plaintiff under EAJA.