                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                                                  OCTOBER 28, 2011
                                            No. 11-12782
                                                                     JOHN LEY
                                        Non-Argument Calendar
                                                                      CLERK
                                      ________________________

                            D.C. Docket No. 6:07-cv-01690-GAP-GJK



CARVONDELLA BRADLEY,
JOYCE ELAINE NIEVES,
LARHONDA WILLIAMS,
CHRIS CROWLEY,
DERRICK BURKE,
CHARLES E. BURKE, JR.,
GREG BURKE,
CYNTHIA BURKE,
BEATRICE WELLS,
KARL CROWLEY,
individually, et. al.,

llllllllllllllllllllllllllllllllllllllll                         Plaintiffs-Appellants,

                                               versus

SECRETARY, U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES,

lllllllllllllllllllllllllllllllllllllll                          lDefendant-Appellee.
                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                 (October 28, 2011)



Before HULL, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Carvondella Bradley, on behalf of Charles Burke’s

estate and the ten surviving Burke children, appeals the district court’s denial of

Bradley’s request for attorney’s fees, pursuant to the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(b). After review, we affirm.

                                I. BACKGROUND

      Charles Burke resided in a Florida nursing home for approximately eighteen

months. After becoming seriously ill, Burke was removed from the nursing home

and died in a hospital. During Burke’s hospital stay, the Secretary of the

Department of Health and Human Services (“Secretary” or “DHHS”), on behalf of

Medicare, paid $38,875.08 for his medical care.




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       Subsequently, Plaintiff-Appellant Bradley, on behalf of Burke’s estate,

brought a wrongful death claim against the nursing home and its liability

insurance carrier. Bradley settled the claim for $52,500 and notified the Secretary

of the settlement. The Secretary asserted that Burke’s estate had to reimburse

Medicare for Burke’s net medical expenses of $22,480.89.

       Plaintiff-Appellant Bradley then filed in probate court an application for the

court to adjudicate the rights of the estate and the children to the settlement funds.

The Secretary declined to participate in the probate court proceeding. The probate

court determined that DHHS was entitled to only $787.50 of the settlement funds.

       The Secretary declined to recognize the probate court’s determination,

relying upon DHHS’s Medicare Secondary Payer Manual (“Medicare Manual”).1

The Secretary continued to assert that Burke’s estate owed Medicare $22,480.89.

Bradley paid that amount under protest. After exhausting her administrative

remedies, Bradley appealed the Secretary’s decision to the federal district court.

The district court deferred to the Secretary’s interpretation of the Medicare




       1
        In pertinent part, the Medicare Manual states: “The only situation in which Medicare
recognizes allocations of liability payments to non-medical losses is when payment is based on a
court order on the merits of the case.” Medicare Secondary Payer Manual (CMS Pub. 100-05)
Chapter 7, § 50.4.4 (currently under review).

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Manual, and held that Medicare was entitled to reimbursement in the amount of

$22,480.89.

      Bradley then appealed to this Court. In Bradley v. Sebelius, we reversed the

district court’s decision, concluding that DHHS’s Medicare Manual was not

entitled to deference. 621 F.3d 1330, 1338 (11th Cir. 2010). Accordingly, we

held the Secretary’s decision was not supported by substantial evidence and found

the Secretary was entitled to only $787.50, as determined by the probate court. Id.

at 1339.

      On remand, the district court entered judgment in accordance with our

appellate opinion. Subsequently, Plaintiff-Appellant Bradley filed a motion for an

award of attorney’s fees and costs pursuant to § 2412(b) of the EAJA. The district

court denied Bradley’s motion, finding that DHHS had not acted in bad faith. The

district court explained that our appellate decision involved an issue of first

impression and that nothing suggested the Secretary had acted in bad faith, as

follows:

      The Secretary acted in conformity with [DHHS’s] long-held legal
      position, one supported by decisions from other Courts of Appeal[s].
      The Secretary’s position in this particular case was also supported by
      most of the judges who heard this dispute. Ultimately, two of the three
      judges on the Eleventh Circuit Court of Appeals agreed with the
      Plaintiffs on a question of first impression. But neither of those judges
      suggested that the Secretary acted in bad faith in litigating this case, and

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       the Plaintiffs have not provided any basis for such a conclusion in their
       motion.

This appeal followed.



                                      II. DISCUSSION

       We review a district court’s decision denying a request for attorney’s fees

under § 2412(b)2 of the EAJA for abuse of discretion. Maritime Mgmt., Inc. v.

United States, 242 F.3d 1326, 1331 (11th Cir. 2001). We review a district court’s

finding regarding a party’s lack of bad faith for clear error. Id.

       Under 28 U.S.C. § 2412(b), a district court’s award of attorney’s fees is

discretionary. The district court may appropriately exercise its discretion to award

fees under § 2412(b) where the government acted “in bad faith, vexatiously,

wantonly, or for oppressive reasons.” Maritime Mgmt., 242 F.3d at 1331 (quoting

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59, 95 S. Ct.

1612, 1622 (1975)) (quotation marks omitted). “Bad faith,” in turn, means “not


       2
        In the district court, Bradley filed a motion entitled: “Plaintiffs’ Verified Motion for
Award of Attorneys’ Fees and Costs as Prevailing Parties in These Proceedings Pursuant to
Federal Common Law and Equal Access to Justice Act (“EAJA”) 28 U.S.C.
§2412(b)/Memorandum of Law in Support.” The Memorandum of Law argues for attorney’s
fees exclusively under § 2412(b). Because Bradley argued before the district court only that she
was entitled to attorney’s fees under § 2412(b), we decline to address her argument on appeal as
to 28 U.S.C. § 2412(d)(1)(A). See Access Now, Inc. v. Sw. Airlines, Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (“[A]n issue not raised in the district court and raised for the first time in an
appeal will not be considered by this court.” (quotation marks omitted)).

                                                 5
simply bad judgment or negligence, but rather it implies the conscious doing of a

wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state

of mind affirmatively operating with furtive design or ill will.” United States v.

Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999) (alteration in original) (quotation

marks omitted).

      Here, the district court’s finding of no bad faith was not clearly erroneous

and thus its denial of attorney’s fees was not an abuse of discretion. In explaining

its finding, the district court noted that the Secretary’s actions followed

“[DHHS’s] long-held legal position,” which other circuit court decisions

supported. While our circuit (in a 2–1 opinion) reached a different conclusion

than the Secretary on a matter of first impression in this circuit, that is not enough

to compel a finding of bad faith. See Gilbert, 198 F.3d at 1299. Nothing in the

record indicates DHHS pursued its position “because of dishonest purpose or

moral obliquity.” See id. Further, Plaintiff-Appellant Bradley has presented no

evidence that DHHS acted vexatiously or wantonly, such as by pursuing dilatory

tactics or abusive discovery practices. Accordingly, we must affirm the district

court’s denial of Bradley’s § 2412(b) attorney’s fee request.

      AFFIRMED.




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