rejecting appellant's contention that he was a prevailing party because the matter was remanded for readjudication in light of caselaw that was not yet considered by the agency in the first instance
How later courts described this case
- rejecting appellant's contention that he was a prevailing party because the matter was remanded for readjudication in light of caselaw that was not yet considered by the agency in the first instance
- finding no explicit admission of error or implicit acknowledgment of error in Court decision
- finding no explicit finding of error or implicit acknowledgment of error in Court decision
- arguing it was inappropriate to deny the appellant prevailing party status without determining the basis of the remand
Written by the judges who cited it.
The opinion
MOORMAN, Judge,
concurring:
I concur with the reasoning and the result of the majority opinion. I write separately to note an alternative basis for denying the EAJA application. Although the Court did not reach the question of whether the Secretary’s position was substantially justified because the appellant was not a prevailing party, I agree with Judge Lance’s opinion that the Secretary’s position was substantially justified, but I stress that I believe that, notwithstanding the decision of the United States Court of Appeals for the Federal Circuit in Smith v. Nicholson, 451 F.3d 1344 (Fed.Cir.2006), the Secretary’s position was substantially justified. See Pierce v. Underwood, 487 U.S. 552 , 566 n. 2, 108 S.Ct. 2541 , 101 L.Ed.2d 490 (1988) (“[A] position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.”).