Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

MEMORANDUM^** 

Gary G. Beckstead appeals a district court order denying his motion for attorney's fees and costs under the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412. In its order, the district court adopted the magistrate's finding that the appellant is not entitled to fees because the government's position in the underlying action for disability benefits was substantially justified. We affirm.

Before addressing the merits, we note that the government argues in its brief that the motion for fees was untimely, and therefore that the district court did not have jurisdiction to consider the motion. The EAJA requires a party seeking fees to file a motion "within thirty days of final judgment in the action," 28 U.S.C. § 2412(d) (1) (B), and defines "final judgment" as a "judgment that is final and not appealable." 28 U.S.C. § 2412(d) (2) (G). The government argues that the final judgment in this case was the decision by the Social Security Administration's Appeals Council awarding benefits to the claimant.

The government's jurisdictional argument is based on our decision in Melkonyan v. Heckler, 895 F.2d 556 (9th Cir. 1990). In Melkonyan, we held that a decision by the Appeals Council awarding benefits becomes a final judgment for purposes of the EAJA, thereby commencing the 30-day limit for filing a motion for fees, once the 65-day period for appealing the Council's decision under 42 U.S.C. § 405(g) expires.

There is a question, however, as to whether Melkonyan ought to be applied retroactively. The district court considered the motion for fees on the merits. We review a district court decision to deny attorney's fees under the EAJA for an abuse of discretion. Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988). The district court abuses its discretion when its "decision is based on an erroneous conclusion of law or when the record contains no evidence on which [it] could rationally have based its decision." Id. (quoting In re Hill, 775 F.2d 1037, 1040 (9th Cir. 1985)).

The magistrate found that the Secretary's decision to award benefits on remand was based principally on evidence the claimant submitted after the initial decision denying benefits. That conclusion is supported by the decision of the ALJ awarding benefits, which relies in part on evidence available to the Secretary only after remand from the district court. There is evidence in the record, then, to support the magistrate's--and therefore the district court's--conclusion that the Secretary's position was substantially justified. Accordingly, we hold that the district court did not abuse its discretion in denying the appellant's motion for attorney's fees. Our disposition makes it unnecessary to decide the jurisdictional question.

The order of the district court is AFFIRMED.