Karen Gordon v. James B. Peake

I must respectfully dissent from the majority’s decision to award EAJA fees in this matter. As an initial note, while the majority cites Ozer v. Principi, 16 Vet.App. 475, 479 (2002) to support its contention that “a dissent in the underlying merits decision” “is not a dispositive factor in the Court’s consideration of whether the Secretary’s litigating position was substantially justified,” Ozer did not rest on those grounds. The Court in Ozer found that the dissenting opinion supported the conclusion that the Secretary’s position was justified. Id. While a dissenting opinion may not be a…