# Gavette v. Office of Personnel Management

> Court of Appeals for the Federal Circuit · February 28, 1986 · 808 F.2d 1456

URL: https://www.frixlaw.com/law-library/cases/8947169

## Case

- **Full name:** Charles E. GAVETTE v. OFFICE OF PERSONNEL MANAGEMENT and Department of the Treasury
- **Court:** Court of Appeals for the Federal Circuit
- **Decided:** February 28, 1986
- **Citations:** 808 F.2d 1456; 1986 U.S. App. LEXIS 19956
- **Precedential status:** Published
- **Opinion:** Concurring in part by Nies
- **Judges:** Archer, Baldwin, Bennett, Bissell, Davis, Friedman, Markey, Newman, Nies, Rich, Smith
- **Cited by:** 128 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8947169

## How later opinions describe it (automated extraction)

- 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 un…
- finding time for filing petition for certiorari did not expire until 90 days after entry of judgment giving applicant a total of 120 days from entry of judgment in which to file EAJA application for fees and expenses

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8947169. Public record. Not legal advice.