holding that the Court need not address the Secretary's position at the litigation stage where the Secretary failed to carry his burden of demonstrating that his position was substantially justified at the administrative stage
How later courts described this case
- holding that the Court need not address the Secretary's position at the litigation stage where the Secretary failed to carry his burden of demonstrating that his position was substantially justified at the administrative stage
- the Court need not address the Secretary’s position at the litigation stage where the Secretary failed to carry his burden of demonstrating that his position was substantially justified at the administrative stage
- Court need not address the Secretary’s position at the litigation stage where the Secretary failed to carry his burden of demonstrating that his position was substantially justified at the administrative stage
Written by the judges who cited it.
The opinion
HOLDAWAY, Judge,
concurring:
I concur with both the principal opinion and also the views expressed by Judge Ivers.
I, however, am not prepared to say that the “failure” of the Board to discuss the VCAA will, in all cases, automatically constitute a lack of substantial justification. When that law was passed, this Court struggled for a time with its full implications. We resolved this by remanding most cases even though we recognized there were cases where the applicability of the VCAA was problematic. We should not require the Board to be prescient as a condition precedent of being “substantially justified.” If the Secretary offers a defense of substantial justification in a case where the Board “failed” to discuss the VCAA, I, for one, will carefully consider the arguments in the context of the facts of the particular case.