Tobeler v. Colvin

Under the Equal Access to Justice Act, an award of attorney’s fees is appropriate where the government’s underlying position was not substantially justified, despite justification for their litigation position.

In an agency action regarding Craig Tobeler’s disability, Tobeler attempted to present lay witness testimony from his former employer, as well as his wife, detailing his symptoms and inability to work during certain periods outside of the direct time period in question. The government contended that the evidence from the former employer and the wife described Tobeler’s symptoms during a period of time not in issue. The Administrative Law Judge (“ALJ”) decided to exclude the evidence, but did so without comment. Having prevailed on the ultimate issue, Tobeler moved in the district court for attorney’s fees under the Equal Access to Justice Act (“EAJA”), but was denied. Under the EAJA, attorney’s fees should be granted to a prevailing party unless the position of the government was substantially justified. On appeal, the Ninth Circuit held that the government’s position had not been substantially justified, as the ALJ had disregarded competent testimony without comment. While the testimony of the two witnesses was as to time periods not directly at issue, those earlier periods of disability were still relevant to show the continuing effects of the disability on Tobeler’s ability to work. Even if it was not relevant, the panel noted, disregarding the evidence would still have required comment from the ALJ since it was competent lay witness evidence. Therefore, it was an error for the ALJ to disregard this evidence without comment, and the position of the government in the underlying action was not substantially justified and thus the award of attorney’s fees should have been granted under the EAJA. REVERSED and REMANDED.