Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

MEMORANDUM^** 

Armanoush Paloulian appeals the district court's order denying her motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), following the court's reversal of the Secretary of Health and Human Services' ("Secretary") denial of her application for Social Security benefits. Paloulian contends that the district court erred because the Secretary's position in opposing her application for benefits was not substantially justified. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for an abuse of discretion, see Purcell v. United States, 908 F.2d 434, 437 (9th Cir. 1990); Pirus v. Bowen, 869 F.2d 536, 539 (9th Cir. 1989), and affirm.

The EAJA provides for an award of attorney's fees to a prevailing party other than the United States in judicial review of an agency action "unless the [district] court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." See 28 U.S.C. § 2412(d) (1) (A); Purcell, 908 F.2d at 438. "Substantially justified" means justified to a degree that could satisfy a reasonable person. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Pirus, 869 F.2d at 539 n. 5. The district court must examine both "the position asserted by the government in the trial court as well as the nature of the underlying government action at issue." Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). If the government carries its burden of showing "that its case had a reasonable basis both in law and in fact," then fees should not be awarded. Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984) (quotations omitted).

The introductory paragraph of 20 C.F.R. Part 404, Subpt. P, App. 1, Sec. 12.00, which deals with disabilities due to mental disorders, provides that " [s]pecific signs and symptoms under any of the listings 12.02 through 12.09 cannot be considered in isolation from the description of the mental disorder at the beginning of each listing category." Id. at Sec. 12.00A. The beginning of section 12.05 provides that " [m]ental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22) ." Id. at Sec. 12.05 (emphasis added). This court has held that " [i]n issuing regulations, ... the Secretary has interpreted the statute, and we give great deference to that interpretation." Miller v. Bowen, 789 F.2d 678, 681 (9th Cir. 1986).

The Secretary argued before both the ALJ and the district court that under these provisions, Paloulian was not impaired due to a mental disorder because there was no evidence that the disorder manifested itself before age 22. Paloulian contends that the Secretary's position was not substantially justified because no court has ever required a claimant to present such evidence.

Apparently, however, both the ALJ and the district court agreed with the Secretary that evidence that Paloulian's mental disorder began before age 22 was necessary. In addition, there is at least one case in which a court considered whether a claimant had presented evidence of mental retardation predating age 22. See Luckey v. United States Dept. of Health & Human Servs., 890 F.2d 666, 668-69 (4th Cir. 1989). Moreover, even without this case, the fact that no other court has ever upheld the Secretary's argument does not render the Secretary's position unreasonable as a matter of law.¹  Cf. Pierce, 487 U.S. at 569 (observing that the Secretary could take a reasonable position, yet lose the case, and vice versa).

The record also shows that Paloulian worked as a bookkeeper in the Soviet Union from 1950 to 1980, and as a bench worker for a jewelry business from 1981 to 1985 in Providence, Rhode Island. The record is devoid of evidence whether Paloulian suffered from a mental disorder before age 22. Under these circumstances, we cannot say that the Secretary's position was unreasonable as a matter of fact.

Paloulian contends that after remand from the district court, the Secretary abandoned his position, thus demonstrating that the Secretary never really believed in his position. This contention lacks merit. The record does not show that the Secretary ever abandoned his position.

Because the Secretary's position was reasonable in both law and in fact, we hold that the district court did not abuse its discretion in finding that the Secretary's position was substantially justified. See Rawlings, 725 F.2d at 1196. Therefore, the district court did not abuse its discretion in denying Paloulian's motion for attorney's fees. See Purcell, 908 F.2d at 437.

AFFIRMED.