1. “[W]hether either the EAJA or the Back Pay Act is applicable to attorney fees and expenses incurred in proceedings before the board in this case.” 2. “[W]hether the EAJA is applicable to fees and expenses incurred in the appeal to the Federal Circuit.” 3. “[W]hat is the standard that must be met for an award of fees and expenses under the EAJA.”
1. “Gavette’s application for attorney fees for the board proceedings is granted under the Back Pay Act but expenses cannot be awarded under [EAJA].” 2. “We affirm, in banc, the holding in Olsen that the EAJA applies to appeals from the board to the Federal Circuit, because such appeals are civil actions within the scope of 28 U.S.C. § 2412(d)(1)(A).” 3. “We hold that substantial justification requires that the Government show that it was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts.”
