                                                                            FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS                   March 30, 2011
                            FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court


    MICHELLE K. FRUITT,

                Plaintiff-Appellant,
                                                          No. 10-6222
    v.                                             (D.C. No. 5:07-CV-01167-R)
                                                          (W.D. Okla.)
    MICHAEL J. ASTRUE, Commissioner
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.


         Michelle K. Fruitt appeals the denial of her application for attorney’s fees

under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Ms. Fruitt

claims she is entitled to $5,210.80 in fees because the Commissioner’s opposition

to her previous EAJA motion was not substantially justified. We have

jurisdiction under 28 U.S.C. § 1291 and affirm. We conclude the Commissioner’s



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
position in the earlier EAJA proceedings was substantially justified, and thus the

district court did not abuse its discretion in denying Ms. Fruitt’s application.

                                           I

      This is the second time these parties have litigated the EAJA before us.

The first round was an appeal from the district court’s decision that Ms. Fruitt

could recover attorney fees but not $350.00 in costs incurred while contesting the

Commissioner’s denial of benefits. See Fruitt v. Astrue, 604 F.3d 1217, 1218

(10th Cir. 2010) (Fruitt I). Accepting a magistrate judge’s report and

recommendation, the district court had reasoned that Ms. Fruitt failed to file a

timely bill of costs within 14 days after entry of judgment, as required by the

court’s local civil rule 54.1. 1 But recognizing a split in the way judges of the

Western District of Oklahoma applied local rule 54.1, we reversed and held the

rule was inapplicable. Id. at 1220. Although the Commissioner had argued that

the 14-day deadline applied because Ms. Fruitt’s motion was made “pursuant to”

28 U.S.C. § 1920, as stated by the rule, see Aplt. App. at 30-32, we explained that

Ms. Fruitt did not file her request “pursuant to” § 1920 because that statute



1
      Local rule 54.1 provides:

             A prevailing party who seeks to recover costs against an
      unsuccessful party pursuant to 28 U.S.C. § 1920 shall file a bill of
      costs on the form provided by the Clerk and support the same with a
      brief. The bill of costs and brief shall be filed not more than 14 days
      after entry of judgment.

                                          -2-
simply enumerates the types of expenses that are classified as “costs,” Fruitt I,

604 F.3d at 1219-20. 2 Instead, Ms. Fruitt applied for costs “pursuant to”

§ 2412(a)(1) of the EAJA because the EAJA provides the statutory authorization

for the recovery of costs. 3 Id. at 1220. And since that provision does not

establish a time limit for cost requests, see id. at 1219 & n.2, we concluded there

was no applicable deadline, id. at 1220.

2
      28 U.S.C. § 1920 provides:

     A judge or clerk of any court of the United States may tax as costs the
     following:

     (1) Fees of the clerk and marshal;
     (2) Fees for printed or electronically recorded transcripts necessarily
     obtained for use in the case;
     (3) Fees and disbursements for printing and witnesses;
     (4) Fees for exemplification and the cost of making copies of any
     materials where the copies are necessarily obtained for use in the
     case;
     (5) Docket fees under section 1923 of this title;
     (6) Compensation of court appointed experts, compensation of
     interpreters, and salaries, fees, expenses, and costs of special
     interpretation services under section 1828 of this title.

     A bill of costs shall be filed in the case and, upon allowance, included
     in the judgment or decree.

3
      28 U.S.C. § 2412(a)(1) states, in relevant part:

      Except as otherwise specifically provided by statute, a judgment for
      costs, as enumerated in section 1920 of this title, but not including
      the fees and expenses of attorneys, may be awarded to the prevailing
      party in any civil action brought by or against the United States or
      any agency or any official of the United States acting in his or her
      official capacity in any court having jurisdiction of such action.

                                           -3-
      Having prevailed on appeal, Ms. Fruitt returned to the district court and

filed a second application for fees under the EAJA. This time she requested an

award of $5,210.80 for successfully prosecuting her cost appeal. She claimed the

fee amount was reasonable and the Commissioner had not been substantially

justified in opposing her cost request. In response, the Commissioner

acknowledged his position had been wrong. But he underscored the split among

the judges in the Western District of Oklahoma and pointed out that prior to our

reversal, the general practice in that jurisdiction had been to require, under local

rule 54.1, a timely bill of costs within 14 days of judgment. Additionally, the

Commissioner argued that an award would be unjust because Ms. Fruitt’s fees

greatly exceeded the costs she recovered, and her request was excessive because

she expended $5,210.80 to obtain $350.00 in costs. The district court agreed and

denied Ms. Fruitt’s application. Ms. Fruitt moved to alter or amend the judgment

under Federal Rule of Civil Procedure 59(e), but the court denied her motion.

She then initiated this appeal.

                                          II

      We review the denial of both an EAJA claim and a Rule 59(e) motion for

an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 558-59 (1988)

(EAJA claim); Lundahl v. Zimmer, 296 F.3d 936, 940 (10th Cir. 2002) (Rule

59(e) motion). Under the EAJA, Ms. Fruitt, as the prevailing party, is entitled to

reasonable attorney fees from the government “‘unless the court finds that the

                                          -4-
position of the United States was substantially justified or that special

circumstances make an award unjust.’” Al-Maleki v. Holder, 558 F.3d 1200, 1204

(10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)). “The test for substantial

justification in this circuit is one of reasonableness in law and fact.” Hackett v.

Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quotation omitted). This means

that although “the government’s position must be justified to a degree that could

satisfy a reasonable person,” it need not be correct. Id. (quotation omitted).

      We conclude the Commissioner’s position in Fruitt I was substantially

justified. The Commissioner ultimately was proven to be incorrect, but

reasonable minds clearly subscribed to his view of the interrelated rules and

statutes. Indeed, both the magistrate and district judges in the proceedings

underlying Fruitt I embraced the Commissioner’s position, and Ms. Fruitt herself

acknowledges that the district court’s “longstanding practice” misapplied local

rule 54.1, Aplt. Br. at 12. Although she correctly argued in Fruitt I that not all

the judges in the Western District of Oklahoma adopted the Commissioner’s

approach, see Aplt. App. at 7; Fruitt I, 604 F.3d at 1219 (citing Belveal v. Astrue,

No. CIV-07-731-C, 2009 WL 141879, at *1 (W.D. Okla. Jan. 20, 2009)), that lack

of clarity in the governing law increased the likelihood that the Commissioner’s

position was substantially justified, see Martinez v. Sec’y of Health & Human

Servs., 815 F.2d 1381, 1383 (10th Cir. 1987) (per curiam). So, whether the

Commissioner was advocating a position consistent with the district court’s

                                          -5-
longstanding practice, or one side of an intra-district split, either way, his position

was justified to a degree that could—and did—satisfy reasonable people.

      Still, Ms. Fruitt insists the Commissioner’s position cannot be substantially

justified because he advanced flawed arguments in opposing her cost request,

only to partially retreat from those arguments on appeal in Fruitt I. The record

confirms, however, that the Commissioner maintained his position throughout the

proceedings underlying Fruitt I. It is not dispositive that the Commissioner was

wrong. Hackett, 475 F.3d at 1172. The relevant inquiry is whether the

Commissioner’s position was reasonable both in law and in fact. Given the state

of the law in the Western District of Oklahoma at the time the Commissioner

advanced his argument, we agree with the district court that the Commissioner’s

position was substantially justified. The district court therefore acted within its

discretion in denying Ms. Fruitt’s present EAJA application and Rule 59(e)

motion. This conclusion obviates any need to consider whether the fee request

was excessive or whether an award would have been unjust.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court


                                                      Michael R. Murphy
                                                      Circuit Judge




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