Martin A. Schiaffino v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN A. SCHIAFFINO,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 20-35894
D.C. No. 3:17-cv-05541-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted December 8, 2021
Seattle, Washington
Before: McKEOWN and BADE, Circuit Judges, and FITZWATER,** District Judge.
In Schiaffino v. Saul, 799 F. App’x 473 (9th Cir. 2020), a panel of this court
reversed the district court’s affirmance of the Commissioner of Social Security’s
(“Commissioner’s”) final decision denying the application of plaintiff-appellant
FILED
DEC 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

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Martin A. Schiaffino (“Schiaffino”) for disability benefits and remanded for further
proceedings. On remand, Schiaffino applied for an award of attorney’s fees, costs,
and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The
district court awarded costs and expenses (the Commissioner did not oppose this
request), but denied Schiaffino’s request for attorney’s fees. Schiaffino appeals. We
have jurisdiction under 28 U.S.C. § 1291.
Under the EAJA, with exceptions not relevant here, “a court shall award to a
prevailing party . . . fees and other expenses . . . unless the court finds that the position
of the United States was substantially justified or that special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A). The government (here, the
Commissioner) has the burden of proving that the positions of the Commissioner and
the administrative law judge were substantially justified. Thangaraja v. Gonzales,
428 F.3d 870, 874 (9th Cir. 2005). “The decision whether to award fees under the
EAJA, including the district court’s conclusion that the government’s position was
substantially justified, is reviewed for abuse of discretion.” Gutierrez v. Barnhart,
274 F.3d 1255, 1258 (9th Cir. 2001).
Because the Commissioner failed to meet her burden of proof, the district court
abused its discretion when it denied Schiaffino’s request for attorney’s fees. See
Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008). Accordingly, we reverse the
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district court’s order denying an award of attorney’s fees and remand for the district
court to make such an award.1
REVERSED AND REMANDED.
1 The Commissioner’s unopposed motion to take judicial notice [Dkt. No.
29] is GRANTED.
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