                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 13 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DONALD C JOHNSON,                                No. 11-35376

              Plaintiff - Appellee,              D.C. No. 3:09-cv-05688-RBL

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                             Submitted June 8, 2012**
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
      The district court granted Plaintiff-Appellant Donald C. Johnson’s

(“Johnson”) application for attorney fees and expenses under the Equal Access to

Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Defendant-Appellee the

Commissioner of the Social Security Administration (“Commissioner”) appeals,

arguing that the district court abused its discretion in concluding that the

Commissioner’s litigation position was not substantially justified. Because the

history and facts of this case are familiar to the parties, we recount them only to the

extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. §

1291,1 and we reverse and remand.

      The EAJA permits an award of fees to a prevailing party in a civil action

against the United States “unless the court finds that the position of the United

States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). “The

Commissioner is substantially justified if his position met the traditional

reasonableness standard--that is justified in substance or in the main, or to a degree



      1
          We reject Johnson’s argument that the Court lacks jurisdiction because the
Commissioner’s notice of appeal was untimely. Johnson’s argument is premised
on the notion that the clock starts running on the day that triggers the appeals
period. This, however, is incorrect, as the Federal Rules of Appellate Procedure
make clear that “the day of the event that triggers the period” must be excluded.
Fed. R. App. P. 26(a)(1)(A). Applying this rule, the latest the Commissioner could
file his notice of appeal was May 2, 2011, which is the day the Commissioner filed.


                                           2
that could satisfy a reasonable person.” Lewis v. Barnhart, 281 F.3d 1081, 1083

(9th Cir. 2005) (internal quotation marks omitted). In appraising substantial

justification, a court may consider objective indicia, including the viewpoints of

other courts. Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005)

(citing Pierce v. Underwood, 487 U.S. 552, 568 (1988)). When, however, the

objective indicia are inconclusive, the court must “proceed[] to the merits of the

government's litigati[on] position.” Id. (citing Pierce, 487 U.S. at 568).

      In concluding that the Commissioner’s litigation position2 was not

substantially justified, the district court relied exclusively on two Western District

of Washington cases that had also rejected the Commissioner’s litigation position,

Hartmann v. Astrue, 07-CV-5644RJB and Gibbs v. Astrue, 09-CV-5114KLS.

While these two cases are relevant objective indicia, they are far from dispositive.

As the Supreme Court explained in Pierce, “the fact that one other court agreed or

disagreed with the Government does not establish whether its position was

substantially justified.” 487 U.S. at 569. Furthermore, we note that there is not

even unanimity within the Western District of Washington, as prior to the fee


      2
      The Commissioner’s litigation position is that an Administrative Law Judge
need only expressly consider the narrative section of a Mental Residual Functional
Capacity Assessment, which is a form filled out by a physician for the purpose of
determining residual functional capacity. We offer no opinion on the merits of this
argument.
                                           3
award in this case, a different judge had embraced the Government’s litigation

position. See Smith v. Astrue, 09-CV-01582SL.

      Accordingly, we hold that the district court abused it discretion by relying

solely on objective indicia in determining that the Commissioner’s litigation

position was not substantially justified. We reverse and remand so that the district

court can consider the Commissioner’s litigation position on the merits. See

Marlar, Inc. v. United States, 151 F.3d 962, 970 (9th Cir. 1998).

      REVERSED and REMANDED




                                          4
