                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       August 1, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    CH AR LOTTE L. DY E,

                Plaintiff-Appellant,

    v.                                                   No. 06-5233
                                                   (D.C. No. 04-CV-538-C)
    M ICH AEL J. ASTRU E,                                (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




         Appellant Charlotte L. Dye successfully appealed the Commissioner’s

denial of her application for social security disability insurance benefits by

obtaining a remand from this court. See Dye v. Barnhart, 180 F. App’x 27

(10th Cir. 2006). She then applied to the district court for attorney’s fees under


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The parties

consented to a final decision by the magistrate judge pursuant to his authority

under 28 U.S.C. § 636(c), and he awarded fees, but deducted $2,043.40 from the

amount appellant had requested. She appeals.

      W e review the magistrate judge’s decision regarding the amount of

attorney’s fees awarded under EAJA for abuse of discretion. Pierce v.

Underwood, 487 U.S. 552, 571 (1988). W hile the magistrate judge obviously

gave careful thought to this case, we respectfully disagree with his conclusion for

three reasons.

      First, the magistrate judge relied on certain language from Hensley v.

Eckerhart, 461 U.S. 424 (1983), as authority for subtracting from appellant’s fee

request the time she had spent on two unrelated “claims” on which she had not

prevailed in court. See Aplt. Opening Br., Ex. J at 5-6 (citing Hensley, 461 U.S.

at 435-36). W e believe that other language in Hensley is more apposite to this

case. Hensley was not an EA JA case, but, rather, involved fees awarded under

the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. Hensley,

461 U.S. at 429. Hensley also involved distinct and separate claims for relief, not

appellate issues. See id. at 426-28. In contrast here, appellant successfully

argued one issue in this court and obtained a remand, although she did not prevail

on the other issue she presented to us and did not even raise a third issue that the

district court had rejected. In this regard, the Court held in Hensley that

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      [i]n these circumstances the fee award should not be reduced simply
      because the plaintiff failed to prevail on every contention raised in
      the lawsuit. Litigants in good faith may raise alternative legal
      grounds for a desired outcome, and the court’s rejection of or failure
      to reach certain grounds is not a sufficient reason for reducing a fee.
      The result is what matters.

Hensley, 461 U.S. at 435 (citation omitted) (emphasis added).

      Second, the Court subsequently held in Commissioner, Immigration &

Naturalization Service v. Jean that the district court has discretion under EAJA

“to ‘reduce the amount to be awarded . . . to the extent that the prevailing party

during the course of the proceedings engaged in conduct which unduly and

unreasonably protracted the final resolution of the matter in controversy.’”

496 U.S. 154, 161 (1990) (quoting 28 U.S.C. § 2412(d)(1)(C)). The Court added,

however, that “absent unreasonably dilatory conduct by the prevailing party in

‘any portion’ of the litigation, which would justify denying fees for that portion, a

fee award presumptively encompasses all aspects of the civil action.” Id.

(emphasis added) (quoting 28 U.S.C. § 2412(d)(2)(D)). The Court explained that

“[w]hile the parties’ postures on individual matters may be more or less justified,

the EA JA— like other fee-shifting statutes— favors treating a case as an inclusive

whole, rather than as atomized line-items.” Id. at 161-62.

      Third, this court recently discussed Jean in Hackett v. Barnhart, 475 F.3d

1166 (10th Cir. 2007), where the plaintiff had not asserted distinct and related

claims, but, rather, had asserted several different arguments or reasons in support



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of a single claim for a remand. W e pointed out that in light of Jean, “an

issue-by-issue approach is . . . not appropriate” in a fee case. Hackett, 475 F.3d

at 1173 n.1. W e held that because the plaintiff had persuaded us to remand based

on a reversible error, “the fact that the Commissioner prevailed . . . on most

issues did not alter the fact that [he] acted unreasonably in denying benefits at the

administrative level.” Id.

      The magistrate judge can hardly be faulted for not taking Hackett into

account, since that case was decided after he issued his decision. But this case is

analogous to Hackett— although appellant lost on two of the three issues she

pressed in court, her remaining issue convinced us that the Commissioner

improperly denied her claim for disability insurance benefits. She prevailed on

her sole claim for relief— that “[t]he Commissioner’s decision was not supported

by substantial evidence and not free from legal error.” Aplt. O pening Br. at 22.

      All things considered, we respectfully believe that the magistrate judge’s

decision was in error, and we reverse and remand for additional proceedings.

      R EVER SED and R EM A N DED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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