denying EAJA fees in the ease on which the underlying Stillwell decision was based in terms of its legal conclusion as to the invalidity of a regulation
How later courts described this case
- denying EAJA fees in the ease on which the underlying Stillwell decision was based in terms of its legal conclusion as to the invalidity of a regulation
Written by the judges who cited it.
The opinion
STEINBERG, Judge,
dissenting:
The majority denies the EAJA application on the basis of the Court’s opinion in Still-well and goes to considerable lengths to specify why Stillwell may not be distinguished from the instant case. The majority fails to note, however, that Stillwell is on appeal to the U.S. Court of Appeals for the Federal Circuit, where an appeal was docketed on June 20, 1994.
Given the majority’s dispositive reliance on Stillwell, it seems undebatable that if the Federal Circuit reverses this Court’s opinion in Stillwell and orders the award of EAJA fees and expenses, or even remands for further consideration by this Court with the result that such an award is ultimately made, then the instant EAJA application will have to be granted.
Accordingly, I would hold this application in abeyance pending disposition of Stillwell in the Federal Circuit. I see no reason to require the applicant here to bear the cost of an appeal to that Court, in order to preserve EAJA options, or to impose an additional and possibly avoidable filing on that Court. Alternatively, the applicant could move this Court, within the time period provided under Rules 26(e) and 35(d) of the Court’s Rules of Practice and Procedure and pursuant to Rules 35(a) and 36 of those Rules, to hold the judgment here in abeyance pending disposition of Stillwell in the Federal Circuit.
For the foregoing reasons, I would not today reach the merits and therefore respectfully dissent.