stating that Congress recognized that the American Rule deterred individuals and small businesses “from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights”
How later courts described this case
- stating that Congress recognized that the American Rule deterred individuals and small businesses “from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights”
- holding that, to demonstrate substantial justification, the “Government must show that it has not ‘persisted in pressing a tenuous factual or legal position, albeit one not wholly without foundation’ ” (internal citation omitted)
- holding that “ ‘substantial justification’ requires that the Government show that it was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts”
- noting that Olsen held that the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412, “does not apply to proceedings before the board in cases involving ‘tenure’ ” and treating the “request for attorney fees for proceedings before the board as a request under the Back Pay Act,” but “reaffirm[ing]” Olsen’s holding that “the EAJA applies to appeals from the board to the Federal Circuit, because such appeals are judicial proceedings or ‘civil actions’ under 28 U.S.C. § 2412(d)(1)(A)”
Written by the judges who cited it.
The opinion
NIES, Circuit Judge,
dissenting-in-part.
I join in Judge Bissell’s opinion except for Part II. I would award expenses to Gavette as well as attorney fees. The EAJA provides in 28 U.S.C. § 2412 (b) that “a court may award reasonable ... expenses of attorneys unless expressly prohibited by statute.” The Back Pay Act does not expressly prohibit the award of such expenses. Thus, I would hold that expenses of Gavette’s attorneys are also available in this case.