Norris v. Securities and Exchange Commission, 2012 U.S. App. LEXIS 17893

Norris was removed from his SEC Trial Attorney position for three incidents of improper use of government equipment via emails.
Norris sought arbitration under a collective bargaining agreement and challenged the penalty as excessive.
The arbitrator refused to consider post-removal evidence, leading Norris to appeal the removal penalty.
This court held the arbitrator erred in not considering post-removal evidence and remanded for reconsideration with all relevant evidence.
Norris then sought EAJA fees for the prior appeal, arguing the government’s position was not substantially justified.
The court ultimately denied the EAJA application, finding the government’s position substantially justified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Norris a prevailing party for EAJA purposes?	Norris prevailed by remand for reconsideration.	Remand does not establish prevailing-party status.	Yes; Norris is a prevailing party.
Was the government’s position substantially justified?	Norris contends lack of substantial justification.	Government position was substantially justified; Board review limited to evidence before agency.	Substantially justified.

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598 (U.S. 2001) (establishes American rule and standards for EAJA)
Pierce v. Underwood, 487 U.S. 552 (U.S. 1988) (substantially justified standard)
Nalle v. C.I.R., 55 F.3d 189 (5th Cir. 1995) (consideration of unsettled law and discretion in substantial justification)
Schock v. United States, 254 F.3d 1 (1st Cir. 2001) (novel issues affect substantial-justification review)
Gonzales v. Free Speech Coal., 408 F.3d 613 (9th Cir. 2005) (reasonable minds could differ on government position)
Malloy v. United States Postal Service, 578 F.3d 1351 (Fed. Cir. 2009) (Board review scope and post-removal evidence context)
Norris v. SEC, 675 F.3d 1349 (Fed. Cir. 2012) (reaffirmation of post-removal evidence consideration)