Today the Federal Circuit released one precedential opinion and three nonprecedential orders. The opinion comes in an appeal addressing the Equal Access to Justice Act, while the orders are all dismissals. Here is the introduction to the opinion and links to the dismissals.
In re Secretary of the Army (Precedential)
This appeal presents a question about the framework for determining the availability of an award of attorney’s fees and expenses against the federal government under the Equal Access to Justice Act (EAJA), which provides for such an award to a prevailing party unless (as relevant here) the position of the government was substantially justified. See 5 U.S.C. § 504 (provision governing agency adjudications, applicable here); 28 U.S.C. § 2412 (similar provision governing court cases). We address the threshold framing of the substantial-justification inquiry, and our ruling is a limited one. We reverse the categorical narrowing of the inquiry into substantial justification that appears in the decision on appeal, in which the Armed Services Board of Contract Appeals determined that the government did not establish the required substantial justification and awarded fees and expenses to the prevailing, non-government party. CKY, Inc., ASBCA No. 60451- EAJA, 23-1 BCA ¶ 38,310, pp. 186,012–19, 2023 WL 2778410 (Feb. 15, 2023) (Fees Decision). We remand for the Board to redetermine, without the categorical narrowing we reject, how to exercise its discretion in resolving the substantial-justification issue. We do not decide what results might be within the range of available discretion in this case.