Freddie Butts v. Robert A. McDonald

I agree with Judge Lance that the Government’s position was substantially justified and therefore join his dissent to the extent that he would hold that EAJA fees be denied in this case. I write separately, however, to point out that the appropriate analysis for substantial justification asks whether, considering the totality of the circumstances, the Agency’s litigation and agency-level positions were reasonable at the time they were taken. Although the majority gives lip service to the totality of the circumstances, in substance the majority focuses on only one factor, the Federal Circuit’s…