Freddie Butts v. Robert A. McDonald

With due respect to my colleagues in the majority, I would hold that the Secretary’s position was substantially justified, thereby precluding an EAJA award, and so I must dissent.

The crux of the majority’s substantial justification analysis is that “there is really only one factor weighing in favor of finding substantial justification at the administrative stage: the Board’s obligation to follow judicial precedent,” which the majority contends is outweighed by five opposing factors. Ante at 87. This analysis misapplies the totality-of-the-circumstances test for substantial justification,…