Roque-Espinosa v. Chertoff

MEMORANDUM ** Plaintiff Socorro Roque-Espinosa appeals the district court’s denial of attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 . Plaintiff argues that the district court abused its discretion in holding that the government’s litigating position as a whole was “substantially justified.” See Pierce v. Underwood, 487 U.S. 552, 563 , 108 S.Ct. 2541 , 101 L.Ed.2d 490 (1988) (holding that abuse of discretion review applies). We vacate and remand. The district court’s analysis is contrary to the Supreme Court’s guidance in Pierce . The district court here did not reach “the actual merits of the Government’s litigating position,” id. at 569 , 108 S.Ct. 2541 , because it found conclusive the view of another judge in the Western District of Washington. In particular, the district court relied on the fact that one unpublished order had agreed with the government’s position. In so reasoning, the district court failed to heed Pierce’s admonition that, “[ojbviously, the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified. Conceivably, the Government could take a position that is not substantially justified, yet win.” Id.-, see also Marlar, Inc. v. United States, 151 F.3d 962, 970 (9th Cir.1998) (remanding for reconsideration when the district court applied an incorrect legal standard). We express no view on whether the government’s position was substantially justified. VACATED and REMANDED. The parties are to bear their own costs on appeal. The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).