NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

TYRONE L. WHITE,

Plaintiff-Appellant,

 v.

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant-Appellee.

No. 23-15341

D.C. No. 2:19-cv-01498-AC

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Allison Claire, Magistrate Judge, Presiding

Submitted November 17, 2023** 

San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

Dissent by Judge MILLER.

Following our decision in White v. Kijakazi, 44 F.4th 828 (9th Cir. 2022),

Plaintiff-Appellant Tyrone White sought attorneys’ fees in the district court under

FILED

NOV 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Under the EAJA,

“a prevailing party in a suit against the government is entitled to fees in certain

circumstances unless the government’s position was ‘substantially justified.’” Le

v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008) (quoting United States v. Marolf,

277 F.3d 1156, 1160 (9th Cir. 2002)). To meet this standard, the government must

show that its position had a “reasonable basis both in law and fact.” Meier v.

Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce v. Underwood, 487 U.S.

552, 565 (1988)).

The district court denied the motion for fees. We have jurisdiction under 28

U.S.C. § 1291. We review the decision below for an abuse of discretion, which

“occurs if the district court based its decision on an erroneous legal conclusion or a

clearly erroneous finding of fact.” Gonzales v. Free Speech Coal., 408 F.3d 613,

618 (9th Cir. 2005) (quoting Or. Env’t Council v. Kunzman, 817 F.2d 484, 496

(9th Cir. 1987)). We reverse.

The government argued in White that the Appeals Council could properly

affirm the Administrative Law Judge’s decision without addressing or resolving

the substantial discrepancy between White’s estimates of the number of jobs

available to him in the national economy and the estimates made by the

government’s vocational expert. The government claimed it was appropriate for

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the agency to rely solely on the vocational expert’s estimates because they were

not “so unreasonable they could not pass the low substantial evidence bar” and

because, in the government’s view, White’s estimates “appear[ed] to be

unreasonable.” As we explained in our opinion, this position was foreclosed by

our decision in Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017), which held that

the agency “violate[s] the general duty to clarify and develop the record” when it

ignores a “vast discrepancy between the [vocational expert’s] job numbers and

those tendered by” the claimant. White, 44 F.4th at 836 (quoting Buck, 869 F.3d at

1052).

The district court found that the government’s position was nonetheless

substantially justified because our opinion in White involved “an extension of Buck

to the circumstances of this case,” since White presented his estimates for the first

time before the Appeals Council instead of the Administrative Law Judge. But

whether our decision extended prior precedents is not the correct inquiry. We look

instead to the government’s litigation conduct to determine whether its actions

were substantially justified, considering whether its “position ‘as a whole’ ha[d] ‘a

reasonable basis in both law and fact.’” Ibrahim v. U.S. Dep’t of Homeland Sec.,

912 F.3d 1147, 1168 (9th Cir. 2019) (en banc) (quoting Gutierrez v. Barnhart, 274

F.3d 1255, 1259 (9th Cir. 2001)).

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The gravamen of the government’s position was that the agency could rely

exclusively on the vocational expert’s estimates because the government claimed

those estimates were more reliable than White’s. That position was incompatible

with Buck. The government’s argument that Buck was distinguished by White’s

submission of evidence to the Appeals Council consisted of a single sentence

without citation in briefing that, except for that sentence, entirely relied on an

argument that was foreclosed by our holding in Buck. That single sentence is not

enough to escape the conclusion that the government’s position as a whole lacked

substantial justification. See id. at 1171 (“That some of the arguments made along

the way by the government attorneys passed the straight face test . . . does not

persuade us that the government’s position was substantially justified.”).

Moreover, “[t]he government’s position is not substantially justified simply

because our precedents have not squarely foreclosed the position.” Decker v.

Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). Social Security Administration

regulations and our prior cases clearly establish that “a claimant has a right to

submit additional evidence to the Appeals Council” upon a showing of good cause. 

White, 44 F.4th at 836–37 (citing 20 C.F.R. § 404.970(b); Brewes v. Comm’r of

Soc. Sec. Admin., 682 F.3d 1157, 1162–63 (9th Cir. 2012)). The Appeals Council

accepted White’s evidence and made it “part of the record.” Id. at 836. We hold

4
that our precedents made it sufficiently clear before White that the timing of

White’s submission of evidence did not distinguish his case from the rule we

announced in Buck.

We therefore conclude that the district court abused its discretion in finding

the government’s position substantially justified. See Le, 529 F.3d at 1201.

REVERSED and REMANDED.

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1

White v. Kijakazi, No. 23-15341

MILLER, Circuit Judge, dissenting:

The district court did not abuse its discretion when it deemed the 

government’s position substantially justified and denied White’s motion for 

attorney’s fees under the Equal Access to Justice Act. Abuse of discretion is a

“highly deferential standard” under which we may not “substitute [our] ‘view of 

what constitutes substantial justification for that of the district court.’” Gonzales v. 

Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005) (quoting Bay Area Peace 

Navy v. United States, 914 F.2d 1224, 1230 (9th Cir. 1990)). Instead, our “review 

‘is limited to assuring that the district court’s determination ha[d] a basis in 

reason.’” Id. (quoting Bay Area Peace Navy, 914 F.2d at 1230).

The government’s position is substantially justified if it “has a reasonable 

basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988); id. at 

565 (defining “substantial” as “justified to a degree that could satisfy a reasonable 

person”). I joined Judge W. Fletcher’s opinion setting aside the agency’s denial of 

benefits, and I continue to believe that it was correct. But, ex ante, it was not so 

obviously correct as to deprive the government’s contrary position of a reasonable 

basis.

Until our decision in this case, we had never set aside the agency’s denial of 

benefits on the basis of evidence presented for the first time to the Appeals 

FILED

NOV 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Council. To be sure, the agency’s regulations permit a claimant to submit 

additional evidence to the Appeals Council. 20 C.F.R. § 404.970(a)(5). But where, 

as here, the Appeals Council denies review, the decision of the ALJ remains the 

final decision of the agency. Id. § 404.981. And it is not obvious from the 

regulations how new evidence submitted to the Appeals Council can cause the 

ALJ’s earlier decision to cease to be supported by substantial evidence. Our 

decision in Buck v. Berryhill does not answer that question because it involved

evidence submitted in the first instance to an ALJ, not the Appeals Council. 869 

F.3d 1040 (9th Cir. 2017). Although we ultimately concluded that the timing of the 

submission did not matter, our decision to publish an opinion in this case implicitly

recognized that applying Buck in this context represents at least a modest extension 

of its holding. It was not unreasonable for the government to attempt to distinguish 

Buck, even if it did so without a lengthy exposition of the issue. (I see no basis for 

tying the justification of the government’s position to the length of its briefing in 

support of that position, lest we incentivize parties to write even longer briefs than 

they already do.) More to the point, it was not an abuse of discretion for the district 

court to conclude that the government’s position had a reasonable basis.

I would affirm the district court’s decision to deny fees.