Johnson v. McDonald

Because the majority fails to apply the appropriate analysis for substantial justification under EAJA—whether, considering the totality of the circumstances, the Agency’s litigation and agency positions were reasonable at the time those positions were taken—I dissent. Although the majority cites the totality of the circumstances standard, in substance the majority focuses on one factor, the Federal Circuit’s merits determination in Johnson v. McDonald (Johnson II), 762 F.3d 1362 (Fed.Cir.2014), without considering all of the pertinent factors surrounding the government’s conduct. This…