Cline v. Shinseki

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

As the majority acknowledges, ante at 326, the Federal Circuit has “repeatedly made clear that the substantial justification inquiry requires an analysis of the ‘totality of the circumstances’ surrounding the government’s adoption of a particular position.” Patrick v. Shinseki, 668 F.3d 1325, 1332 (Fed.Cir.2011); see Stillwell v. Brown, 6 Vet.App. 291, 302 (1994) (“VA must demonstrate the reasonableness, in law and fact, ... based upon…