                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3903
                                    ___________

Shirley Shontos,                       *
                                       *
             Plaintiff-Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Jo Anne B. Barnhart, Commissioner      *
of Social Security,                    *     [UNPUBLISHED]
                                       *
             Defendant-Appellee.       *
                                  ___________

                              Submitted: May 13, 2005
                                 Filed: August 10, 2005
                                  ___________

Before MORRIS SHEPPARD ARNOLD, LAY, and MURPHY, Circuit Judges.
                         ___________

PER CURIAM.

       In a prior appeal, a panel of this court held that Appellant Shirley Shontos was
entitled to Disabled Widow’s Benefits. Shontos v. Barnhart, 328 F.3d 418 (8th Cir.
2003). Subsequently, Shontos filed for attorney’s fees under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412(d). The Commissioner of Social Security
denied Shontos’s request for attorney’s fees and the district court affirmed, finding
that although Shontos eventually prevailed in her request for Disabled Widow’s
Benefits, the Commissioner was substantially justified in denying benefits to Shontos.
       Shontos is entitled to attorney’s fees unless “the position of the United States
was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The Commissioner’s denial
of attorney’s fees is substantially justified if the government’s decision to deny
benefits to Shontos was “clearly reasonable, well founded in law and fact, solid
though not necessarily correct.” S.E.C. v. Kluesner, 834 F.2d 1438, 1440 (8th Cir.
1987) (quoting United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1318 (8th
Cir. 1986)) (emphasis in original). A district court’s order affirming the denial of
attorney’s fees under the EAJA is reviewed for abuse of discretion. Id. at 1439.

        “[T]he most powerful indicator of the reasonableness of the government’s
position is the rationale of the court’s majority opinion in the first appeal.” Lauer v.
Barnhart, 321 F.3d 762, 765 (8th Cir. 2003). In the first appeal, this court reversed
the district court because it gave insufficient weight to adverse evidence in the record.
Shontos, 328 F.3d at 421-24, 425-27. Although this court ordered that Shontos be
awarded disability benefits, the government’s decision to deny benefits to Shontos,
though incorrect, was reasonable. The government’s position was supported by
evidence in the record, and at the time the government chose to deny benefits to
Shontos, “reasonable people could differ as to [the appropriateness of the contested
action].” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations omitted); see also
Lauer, 321 F.3d at 765 (finding that the government’s position lacked “any evidence
in its support”).

      Accordingly, Shontos is not entitled to attorney’s fees under the EAJA, and the
order of the district court is AFFIRMED.
                        ______________________________




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