NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MILLIE SHAW, No. 22-16168

Plaintiff-Appellant, D.C. No. 3:19-cv-08238-DLR

v.

MEMORANDUM*

OFFICE OF NAVAJO AND HOPI INDIAN

RELOCATION, an Administrative Agency of the United States,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted May 18, 2023 Phoenix, Arizona

Before: NGUYEN and COLLINS, Circuit Judges, and KORMAN,** District Judge.

Millie Shaw filed a motion for attorneys’ fees pursuant to the Equal Access

to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Shaw previously prevailed

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 1 before this court in her appeal challenging a denial of relocation benefits under the

Navajo-Hopi Land Settlement Act, Pub. L. No. 93-531, 88 Stat. 1712 (1974). See

Shaw v. Off. of Navajo & Hopi Indian Relocation, 860 F. App’x 493 (9th Cir.

2021). Our prior decision held that the Office of Navajo and Hopi Indian

Relocation’s (“ONHIR”) denial of benefits lacked a basis in substantial evidence.

Id. at 495. We remanded for an award of benefits. Id. Shaw argues in this appeal

that the district court abused its discretion on remand in finding that, despite

ONHIR’s error, the agency’s position was substantially justified and it therefore

had no obligation to pay for Shaw’s legal fees. We affirm.

Under the EAJA, a prevailing party such as Shaw is not entitled to fees if

the position of the United States was substantially justified in that it had “a

reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2

(1988). Contrary to Shaw’s argument, the district court applied the correct

standard. Its conclusion that Shaw’s claim was “subject to reasonable debate”

closely tracks Pierce’s explanation that a position is substantially justified “if a

reasonable person could think it correct.” Id.

Nor did the district court abuse its discretion in denying Shaw’s request for

attorneys’ fees under EAJA. We consider the reasonableness of the underlying

agency action, and the reasonableness of the Government’s defense of that action

in federal court, “as a whole” for EAJA purposes. Ibrahim v. U.S. Dep’t of

2 Homeland Sec., 912 F.3d 1147, 1166 (9th Cir. 2019) (en banc). Although the

position of the United States will generally lack substantial justification under

EAJA where the underlying agency action lacks support in substantial evidence,

see Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013), that is not always the

case. Where the substantial evidence question is itself sufficiently close, the

position of the United States—represented in both the underlying agency decision,

and the Government’s reasonable defense of that agency decision under the highly

deferential standards of substantial evidence review—may be substantially

justified for EAJA purposes even where a panel of this court ultimately deems the

agency decision unsupported by substantial evidence. See Campbell v. Astrue, 736

F.3d 867, 868–69 (9th Cir. 2013); Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir.

2002). We conclude that this is such a case. “In this case there was not enough

evidence to uphold a decision, but enough to find the government’s position was

substantially justified.” Campbell, 736 F.3d at 869. The district court therefore

did not abuse its discretion in holding that the position of the ONHIR, both before

the hearing officer and in federal court, had a “reasonable basis in law and

fact.” Pierce, 487 U.S. at 566 n.2.

Additionally, the district court correctly considered that two of four federal

judges to hear the case on the merits—the district court and a dissenting judge on

appeal—agreed with ONHIR’s position. See Medina Tovar v. Zuchowski, 41 F.4th

3 1085, 1090–91 (9th Cir. 2022) (finding relevant for EAJA purposes that “as many

judges were persuaded by the government’s position as were persuaded by

Plaintiffs’ position”). Although not dispositive on its own, that fact bolsters the

district court’s conclusion, on consideration of Shaw’s motion for fees under

EAJA, that the government’s position was substantially justified.

We need not decide whether Shaw truly incurred the legal fees at issue in

this case.

AFFIRMED.

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