# Alfred W. Vahey v. R. James Nicholson

> United States Court of Appeals for Veterans Claims · July 21, 2006 · 20 Vet. App. 208

URL: https://www.frixlaw.com/law-library/cases/9502484

## Case

- **Full name:** Alfred W. VAHEY, Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Appellee
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** July 21, 2006
- **Citations:** 20 Vet. App. 208; 2006 U.S. Vet. App. LEXIS 579; 2006 WL 2035564
- **Precedential status:** Published
- **Opinion:** Concurrence by Moorman
- **Judges:** Kasold, Lance, Moorman
- **Cited by:** 8 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/9502484

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9502484. Public record. Not legal advice.