Nielsen v. Bisignano

── Nielsen v. Bisignano ── Court: Court of Appeals for the Ninth Circuit Date: April 16, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROSE NIELSEN, No. 25-4270 D.C. No. Plaintiff - Appellant, 2:22-cv-00218-TOR v. MEMORANDUM* FRANK BISIGNANO, Commissioner of Social Security, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding Submitted April 16, 2026** Before: W. FLETCHER, BERZON, and R. NELSON, Circuit Judges. Dissent by Judge R. NELSON. Rose Nielsen appeals the district court’s denial of her motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”). We previously reversed the district court’s decision upholding the * 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). administrative law judge’s (“ALJ”) denial of benefits and remanded to the agency for further proceedings. Nielsen v. Colvin, No. 23-35619, 2024 WL 5200174 (9th Cir. Dec. 23, 2024). Nielsen then moved in the district court for EAJA fees, which the court denied. The district court reasoned that the government’s position had been “substantially justified,” foreclosing a fee award, because “other judges examining the same issues came to the opposite conclusion” from the panel majority, “including the ALJ, this [District] Court, and [dissenting] Ninth Circuit Judge Nelson.” Rose N. v. Bisignano, No. 22-cv-218, 2025 WL 1912442, at *1 (E.D. Wash. July 1, 2025) (citations omitted). The district court concluded that such disagreement between jurists meant “reasonable minds could differ with respect to the record,” and denied the fees on that basis alone. Id. at *2. We review a denial of EAJA fees for abuse of discretion. Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017). A district court abuses its discretion when it fails to apply or misapplies the correct legal standard. Meier v. Colvin, 727 F.3d 867, 869–70 (9th Cir. 2013). For the following reasons, we reverse and remand. 1. Under EAJA, a prevailing plaintiff in a Social Security suit is entitled to attorney’s fees “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 2 25-4270 U.S.C. § 2412(d)(1)(A). 1 The “position of the United States” includes both the government’s litigation position and the underlying agency decision that was challenged—here, the ALJ’s decision denying Nielsen disability benefits. Id. § 2412(d)(2)(D); Meier, 727 F.3d at 872. Because we previously remanded Nielsen’s case to the agency based on the merits, the EAJA analysis focuses on the government’s “position with respect to the issue[s] on which [we] based [our] remand.” Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995). The government bears the burden to establish that its position was “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). By treating as dispositive the fact that several judges—himself, the ALJ, and the dissenting panel member—had agreed with the government’s position,