                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           July 23, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                           Clerk of Court
                             FOR THE TENTH CIRCUIT




    JERRY L. PRITCHETT,

                Plaintiff-Appellant,

    v.                                                      No. 08-5004
                                                  (D.C. No. 4:05-CV-00081-FHM)
    MICHAEL J. ASTRUE,                                      (N.D. Okla.)

                Defendant-Appellee.


                              ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



         Plaintiff-appellant Jerry L. Pritchett appeals the district court’s denial of

his motion for attorney fees under 28 U.S.C. § 2412(d) (the Equal Access to

Justice Act or EAJA). Because the district court did not abuse its discretion in

refusing to award fees, we affirm.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      In the underlying case Mr. Pritchett appealed the district court’s affirmance

of the Commissioner’s denial of his applications for social security disability

insurance benefits and supplemental security income. This court initially

affirmed, Pritchett v. Barnhart, No. 06-5130, 2007 WL 102983 (10th Cir. Jan. 17,

2007), but later granted rehearing, withdrew the affirmance, and reversed in part

and remanded, Pritchett v. Astrue, 220 F. App’x 790, 791 (10th Cir. 2007). In

partially granting rehearing, we instructed the district court to remand to the

administrative law judge (ALJ) “to address the apparent conflict between

plaintiff’s inability to perform more than simple and repetitive tasks and the

level-three reasoning required by the job [of self-service-store attendant]

identified for him by the vocational expert.” Id. at 793 (citing Hackett v.

Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (Hackett I)).

      Because Mr. Pritchett obtained a district-court remand to the Commissioner

under sentence four of 42 U.S.C. § 405(g), he is a prevailing party for EAJA

purposes. Hackett v. Barnhart, 475 F.3d 1166, 1168 (10th Cir. 2007)

(Hackett II). He is therefore “entitled to recover reasonable attorney fees from

the United States unless the court finds that the position of the United States was

substantially justified[,]” id. (internal quotation marks omitted), or there are

“special circumstances that make an award of fees unjust[,]” id. at 1172 (internal

quotation marks omitted). Because the Commissioner does not make the latter




                                          -2-
argument, “[t]he only dispute in this appeal is whether the Commissioner’s

position was substantially justified.” Id.

      In denying the fee motion, the magistrate judge before whom the parties

agreed to proceed concluded that the Commissioner’s position both at the agency

level and at the litigation level was substantially justified. We agree.

      The Commissioner has the burden of demonstrating that his position was

substantially justified, a test that, in this circuit, means his position was

reasonable in law and in fact and thus can be “justified to a degree that could

satisfy a reasonable person.” Id. (internal quotation marks omitted). Even though

the Commissioner’s position turns out to be incorrect, it can still be justified. Id.

Both the Commissioner’s prelitigation and litigation positions must have had

reasonable bases in fact and law to be considered substantially justified.

Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992).

      “We review the district court’s determination of whether the government’s

position was substantially justified for abuse of discretion.” Gilbert v. Shalala,

45 F.3d 1391, 1394 (10th Cir. 1995). “An abuse of discretion occurs when the

district court bases its ruling on an erroneous conclusion of law or relies on

clearly erroneous fact findings.” Hackett II, 475 F.3d at 1172 (internal quotation

marks omitted).

      As mentioned above, the Commissioner’s decision was reversed based on

Hackett I because the ALJ had not reconciled the seeming inconsistency between

                                           -3-
his finding that Mr. Pritchett was limited to simple, repetitive, and routine tasks,

and his further finding that Mr. Pritchett could also do the job of

convenience-store attendant, a position that requires a reasoning level of three,

defined as the ability to “‘[a]pply commonsense understanding to carry out

instructions furnished in written, oral, or diagrammatic form[, and d]eal with

problems involving several concrete variables in or from standardized

situations.’” Hackett I, 395 F.3d at 1176 (quoting U.S. Dep’t of Labor,

Employment & Training Admin., Dictionary of Occupational Titles, Vol. II at

1011 (4th ed. 1991)). Hackett I, however, was not announced until after the

ALJ’s decision in this case, and a position contrary to Hackett I was not

unreasonable. See Hackett II, 475 F.3d at 1173 (Commissioner’s losing

arguments on appeal in Hackett I “were quite reasonable”). Accordingly, at least

for the prelitigation phase, we cannot say that the position of the Commissioner

was substantially unjustified.

      Mr. Pritchett also urges us to find that the position of the Commissioner

during litigation was substantially unjustified. Again, we disagree. In both the

district court and in this court on appeal, Mr. Pritchett raised the Hackett issue in

only the most casual fashion. In his opening brief on the merits in the district

court, the sum of Mr. Pritchett’s relevant argument is the following: “The

reasoning level required by this job is more than simple, repetitive, and routine as

in the hypothetical and RFC. See Hackett v. Barnhart, 395 F.3d 1168, 1176

                                          -4-
(10th Cir. 2005).” Aplt. App. Vol. I at 18 (citation omitted). No mention of the

issue appears in Mr. Pritchett’s reply brief in the district court.

      Similarly, on appeal to this court Mr. Pritchett’s entire argument appeared

on page 38 of a 40-page opening brief and was limited to two and

one-half sentences:

      A RFC for simple, routine tasks contemplates a reasoning ability of
      level 1. Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir.
      2005). The job of sales attendant requires a reasoning ability of level
      3, which is far in excess of that required for simple, repetitive and
      routine work. Id. The sales attendant job is performed in a
      moderately noisy environment, requires the use of fine vision, and
      requires a reasoning level of 3, all of which are prohibited by the
      specific limitations in the ALJ’s hypothetical and RFC.

Aplt. App. Vol. I at 115. Mr. Pritchett made a slightly longer four-sentence

argument in his reply brief. Id. at 279-80. In this EAJA appeal Mr. Pritchett

quotes the arguments made by both sides in their merits briefs, but he makes no

argument why the Commissioner’s position was substantially unjustified.

Opening Br. at 16-21.

      Although the Commissioner did respond to the Hackett argument, both at

the district court level and on appeal, he devoted about as much time to the issue

as did Mr. Pritchett. That is: not much. See Aplt. App. Vol. I at 45 (Aplee.

Resp. Br. in D. Ct.); id. at 254, 256-57 (Aplee. Br. on Appeal). Until

Mr. Pritchett filed his petition for rehearing, the Hackett issue was so poorly

developed in Mr. Pritchett’s briefs that the Commissioner was substantially


                                          -5-
justified in advancing a similarly abbreviated response. Moreover, because of the

skimpy presentation in Mr. Pritchett’s briefs, even this court did not focus on the

Hackett argument until Mr. Pritchett filed his petition for rehearing. That he was

the beneficiary of panel generosity regarding his petition for rehearing does not

mean that the Commissioner’s position was substantially unjustified. The merits

panel could justifiably have denied the petition because of the undeveloped nature

of the Hackett argument in the briefs. See Bronson v. Swensen, 500 F.3d 1099,

1104 (10th Cir. 2007) (declining to consider arguments inadequately presented in

an appellant’s opening brief). If this court need not address an undeveloped

argument in an appellant’s brief, we can hardly say that the appellee was

unreasonable in not conceding the argument.

      In response to the petition for rehearing, the Commissioner advanced

arguments in opposition which, while ultimately unavailing, were nonetheless

reasonable. Those arguments included citation to an unpublished order and

judgment of this court, Sandoval v. Barnhart, 209 F. App’x 820 (10th Cir. 2006),

that arguably could have undermined Mr. Pritchett’s position. Even though in

Mr. Pritchett’s prior appeal we implicitly disagreed with the analysis in the

Sandoval panel’s decision (a disagreement we need not resolve here), we cannot

say that the Commissioner’s adoption of the same argument relied upon in




                                         -6-
Sandoval was substantially unjustified. 1 The Commissioner’s position was thus

unlike that of the Secretary in Gatson v. Bowen, 854 F.2d 379, 380-81 (10th Cir.

1988), who continued to advance an argument that was no longer viable because

of a change in the law.

      Mr. Pritchett argues that the ALJ failed to question the vocational expert

about whether his testimony conformed with the Dictionary of Occupational

Titles. Opening Br. at 28. We will not address this argument as it is not relevant

to the issue of EAJA fees and, moreover, was not part of Mr. Pritchett’s case on

the merits.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Harris L Hartz
                                                   Circuit Judge




1
       The magistrate judge referred to the Commissioner’s arguments opposing
the petition for rehearing in his order, Opening Br. Ex. Q at 4-5, thus undermining
Mr. Pritchett’s contention that the district court failed to focus on the litigation
that occurred after the case came to the Tenth Circuit on appeal. Id. at 21.


                                        -7-
