* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

*** Honorable Robin J. Cauthron, District Judge, UnitedStates District Court for the Western District of Oklahoma, sitting by de signation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

H.D. HULETT,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5139 (D.C. No. 92-C-136-W) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BRORBY and KELLY, Circuit Judges, and CAUTHR ON, *** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from an order of the district cou rt denying her motion for attorney’s fees under the Equal Access to Justice A ct (EAJA), 28 U.S.C. § 2412(d). Plaintiff sought fees after this court’ s partially favorable remand. See Hulett v. Chater , No. 95-5015 (10th Cir. Jan. 10, 1996). The sole issue on appeal is whether the district court erred in denying plai ntiff’s request for EAJA fees. We affirm. Plaintiff was awarded social security disability be nefits beginning in June 1979, due to a heart attack. Both in 1982, followi ng an investigation of whether he was engaged in substantial gainful activity in l ight of his reported earnings, and in 1983, following a medical review and a state ment that his work activity had not changed and no further record development w as needed, the Secretary decided to continue benefits. In June 1986, howeve r, the Secretary terminated plaintiff’s disability benefits on the basis that p laintiff was engaged in substantial gainful activity. In doing so, the Secretary reope ned the original disability determination and concluded that the application fo r benefits involved fraud and that all benefits plaintiff had collected were obta ined by fraud. The district court-3-

affirmed. On appeal, this court held that the Secr etary’s 1982 and 1983 decisions to continue benefits precluded the Secretary from r eopening the original disability determination. This court determined as follows:

The Secretary’s 1982 and 1983 decisions to continue disability benefits were made following an investigation of th ese same reported earnings for 1979 and 1980, as well as those for 19 81, based upon the Secretary’s determination that those reported e arnings were not the result of substantial gainful activity. The Se cretary does not allege the existence of any new indices of fraud th at she currently possesses that were unavailable when the Secretary made these continuation determinations. Significantly, the Se cretary has never sought to reopen the 1982 or 1983 decisions to cont inue benefits. See Lauer v. Bowen , 818 F.2d 636 (7th Cir. 1987)(Secretary could not ignore previous ruling that claimant’s work was not substantial gainful activity). The 1982 and 1983 continuation- of-benefits determinations, therefore, preclude the Secretary f rom reopening the initial disability determination, based upon those same reported earnings. See Dugan[ v. Sullivan] , 957 F.2d [1384,] 1387-88, 1391 [(7th Cir. 1992)]; Draper[ v. Sullivan] , 899 F.2d [1127,] 1130 [(11th Cir. 1990)]. Id. at 4-5. This court determined, however, that the record contained substantial evidence to support the Secretary’s finding that pl aintiff had engaged in substantial gainful activity beginning in 1984. Ac cordingly, this court upheld the recovery of benefits commencing in April 1984 and c ontinuing through August 1986, and reversed and remanded as to recovery of o ther payments. Based only on the partial finding in favor of plaintiff, plaintiff filed a motion for attorney’s fees and costs pursuant to EA JA in the district court,1 Plaintiff did not include in the record a copy of e ither the Secretary’s brief

or his brief to the district court on appeal from t he Secretary’s final order requiring repayment of disability benefits or a cop y of the Secretary’s brief in opposition to the motion for EAJA fees. This courtreviews whether the Secretary’s position was substantially justified onthe “basis of the record (including the record with respect to the action orfailure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” 28 U.S.C. § 2 412(d)(1)(B); see 10th Cir. R. 10.3.2(b) (requiring opposition to motion to be fil ed when appeal is from denial of motion); see also Appellant’s Br. at 15 (quoting language of § 2412( d)(1)(B)). We assume that the Secretary’s brief on appeal has placed her position in the most favorable light and base our decision on that brief’s description of the Secretary’s position. We again emphasize, however, plaintiff’s responsibility to provide all portions of the record needed to make a proper dete rmination on appeal. -4- alleging without elaboration that the Secretary’s p osition on the fraud issue was not substantially justified. The district court de nied the motion. It stated:

The fact that the government lost a portion of the case when the Court of Appeals ruled does not mean that the [ Secretary’s] position was not substantially justified and that p laintiff is entitled to EAJA fees. . . . The fact that the [Secretary’s] de cision was affirmed in part clearly indicates that the [Secretary’s] de cision was substantially justified. The Court of Appeals agre ed with the [Secretary] that plaintiff had been at fault in rec eiving disability benefits to which he was not entitled, so it was re asonable for the [Secretary] to question plaintiff’s conduct on the whole, under the circumstances of this case. Appellant’s App. vol. 1 at 32. Plaintiff appealed. 1 EAJA provides that attorney’s fees shall be awardedto a prevailing party “unless the court finds that the position of the Un ited States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). “The government bears the burden of showing that its position-5-

was substantially justified.” Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995). The government’s position is “substantiallyjustified” if it has a reasonable basis in law and fact. See Pierce v. Underwood , 487 U.S. 552, 565-66 (1988) (citing United States v. 2,116 Boxes of Bone d Beef , 726 F.2d 1481, 1486-87 (10th Cir.1984)). Plaintiff contends that the Secretary was not subst antially justified in raising the fraud issue, because she had determinedin 1982 and 1983 that plaintiff’s work did not constitute substantial gai nful employment and had determined in 1987 that the fraud issue was closed even though plaintiff still had liability for any overpayments. After careful cons ideration, we agree with the district court that, under the circumstances of thi s case, looking at the case as a whole, the Secretary’s position was substantially j ustified. Compare Roanoke River Basin Ass’n v. Hudson , 991 F.2d 132, 135, 139 (4th Cir. 1993) (focusing on litigation as whole to determine whether government ’s position was substantially justified, rather than looking only at issue on whi ch plaintiff prevailed) with Flores v. Shalala , 49 F.3d 562, 566, 572 (9th Cir. 1995) (focusing o n Secretary’s position on particular procedural errors leading to remand and not on reasonableness of position on ultimate issue of dis ability).-6-

Because the district court applied the appropriate standards and its decision has a basis in reason, we conclude the district cou rt did not abuse its discretion in denying EAJA fees. See Gilbert , 45 F.3d at 1394 (“We review the district court’s determination of whether the government’s position was substantially justified for abuse of discretion.”). Accordingly, the judgment of the United States District Court for the Northern District of Oklahoma is AFFI RMED.

Entered for the Court

Wade Brorby Circuit Judge