Unpublished Disposition, 875 F.2d 318 (9th Cir. 1986)

MEMORANDUM^** 

Salvador Moreno appeals from the denial of his motion to recover attorney's fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 and 28 U.S.C. § 2412, as the prevailing party in his habeas corpus proceeding. Moreno sought and obtained a new initial parole hearing after the Parole Commission based its parole decision on a document not disclosed to him. The district court denied his motion for attorney's fees on the grounds that the government's position was substantially justified. We affirm.

BACKGROUND

In March 1985 Moreno pleaded guilty to a single count of distributing heroin and was sentenced to seven years in prison. The presentence report (PSR) prepared in the case contained details of Moreno's heroin sales. It stated the weights of heroin sold, without distinguishing between gross and net weights. The PSR also indicated that some of the heroin sold was estimated by Drug Enforcement Administration (DEA) agents to be 60% pure.

In May 1985 Moreno applied for parole. At Moreno's December 1985 parole hearing, the Commission panel set his guideline range for release at 40-52 months, based on an offense severity category of six. The Commission relied on a letter from Moreno's probation officer, Stanley Nakamura, in determining the offense category. The letter contained the same information regarding heroin weight and purity as was contained in Moreno's PSR. Although the Nakamura letter was placed in Moreno's regional file prior to the parole hearing, it was not forwarded to Moreno's prison file, which Moreno reviewed in preparation for his hearing. The prison file, however, did contain the PSR.

The Commission confirmed the panel's recommendation that Moreno be paroled at the top of his guideline range. The National Appeals Board denied Moreno's challenge to that decision. Moreno subsequently submitted a disclosure request to the Commission and received a copy of the Nakamura letter. On August 21, 1986, he filed a petition for writ of habeas corpus in the district court. He alleged that the Commission had violated his rights by failing to disclose the Nakamura letter. Moreno also alleged that the Commission had violated its own procedures, and his rights, by basing his offense severity category on estimates of the heroin's purity. Moreno requested a new initial parole hearing.

The district court held a hearing on Moreno's petition and ordered the Commission to review Moreno's case at its next hearing. At the Commission's next hearing, Moreno's attorney argued that the Commission's own rules required it to base Moreno's offense severity category on the known net weight of the heroin, rather than on an estimate of its purity, thus lowering Moreno's category from six to five. The Commission recalculated Moreno's offense category from six to five, reducing his guideline range to 24-36 months. Moreno's habeas petition was subsequently dismissed as moot.

In June 1987 Moreno sought recovery of costs as the prevailing party under 28 U.S.C. § 2412(d) (1) (A). The district court denied the application, finding that the government's position was substantially justified. Moreno timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

"A district court's decision to award or deny attorneys' fees under the EAJA will be reversed only for an abuse of discretion." Hill v. United States Immigration & Naturalization Serv., 775 F.2d 1037, 1040 (9th Cir. 1985); see also Rawlings v. Heckler, 725 F.2d 1192, 1194 (9th Cir. 1984). The district court abuses its discretion if it bases its decision on an erroneous conclusion of law or if the record contains no evidence on which it rationally could have based the decision. Hill, 775 F.2d at 1040.

Moreno seeks attorney's fees under 28 U.S.C. § 2412(d) (1) (A). That section authorizes an award of attorney's fees to the prevailing party in a civil suit against the United States unless the court finds that the position of the government was substantially justified. In reviewing the government's position, this court considers the governmental action precipitating the litigation, as well as the government's litigation posture. Rawlings, 725 F.2d at 1195-96. This court has not yet determined whether a habeas petitioner such as Moreno may recover attorney's fees under section 2412. Because we conclude, however, that the government's position was substantially justified, we need not decide whether a habeas petitioner may recover attorney's fees under the EAJA.

The test of substantial justification is one of reasonableness. The government has the burden of showing that its position had a reasonable basis in law and fact. The government sustains this burden if its position is a novel but credible extension of the law. Hill, 775 F.2d at 1042. "That the government lost does not raise a presumption that its position was not substantially justified." Id.

Moreno contends that the district court abused its discretion in concluding that the government's position was substantially justified. In opposing Moreno's request for a new parole hearing, the government had argued the following: (1) the Commission had the authority to base the offense severity category on DEA estimates of drug purity; (2) Nakamura's letter should have been in the prison file under the Commission's own guidelines, but the Commission was not legally obligated to follow its informal policies and therefore Moreno had no enforceable right based on the violation; (3) the Commission did not violate its disclosure duty under 18 U.S.C. § 4208(b) (2) because Moreno requested only the materials in his prison file; and (4) Moreno was not prejudiced by the nondisclosure because the PSR, which was available to him, contained the same information as Nakamura's letter.

Moreno contends that the government was not substantially justified in basing his offense severity category on an estimate of drug purity. He argues that the Commission's own guidelines require it to use weight when purity is not available. The government argues that the Commission reasonably believed that it could rely on DEA estimates in setting the offense category. The Commission believed it had wide discretion to assess the credibility of information it received, based on cases holding that the Commission could consider hearsay information, see, e.g., Soloman v. Elsea, 676 F.2d 282, 288 (7th Cir. 1982), and cases specifically addressing the Commission's discretion in matters of credibility, see, e.g., Brest v. Ciccone, 371 F.2d 981, 982-83 (8th Cir. 1967) ("it is not the function of the courts ... to repass on the credibility of reports and information received by the [Parole] Board); Payton v. Thomas, 486 F. Supp. 64, 68 (S.D.N.Y. 1980) (Commission "had the power to evaluate [the] verity" of information in the presentence report).

That the Commission ultimately reversed itself on this issue, reducing Moreno's offense category from six to five, does not raise a presumption that its position was not substantially justified. See Hill, 775 F.2d at 1042 (that government ultimately loses does not raise a presumption that its position was not substantially justified). We cannot conclude that the government's position was unreasonable.

18 U.S.C. § 4208(b) (2) requires that prisoners be given reasonable access to documents used by the Commission in making its determination. In responding to Moreno's habeas petition, the government argued that it did not violate its section 4208(b) (2) disclosure duty because Moreno's regional file contained the Nakamura letter. Even if the nondisclosure violated section 4208(b) (2), the government argued below that no new hearing was required because Moreno was not prejudiced by the nondisclosure. Moreno contends, however, that the government's position had no basis in law because this court had previously held that a prisoner is entitled to a new initial parole hearing when the Commission bases its parole decision on a document not made available to the prisoner. Anderson v. United States Parole Comm'n, 793 F.2d 1136, 1137-38 (9th Cir. 1986). Moreno argues that the government's position was unreasonable because Anderson did not rest its holding on a finding of prejudice to the prisoner.

We find, however, that the government's position was an arguably credible extension of Anderson. The prisoner in Anderson had no access to the information contained in the presentence report on which the Commission relied in making its determination. Since Moreno had access to the information, the government could reasonably argue that, absent a showing of prejudice, he was not entitled to a new hearing simply because he did not have the precise document. If the government's position is a novel but credible extension of the law, the government sustains its burden of showing that its position had a reasonable basis in law. Hill, 775 F.2d at 1042.

We conclude that the district court did not abuse its discretion in holding that the government's position was substantially justified.

CONCLUSION

The judgment of the district court is AFFIRMED.