I've read several interesting cases in the past in which the court has sanctioned a party for filing a frivolous appeal or opposition even though the district court -- or a judge on the court of appeal (in dissent) -- thought that the position articulated by the sanctioned party not only was not frivolous, but actually should have prevailed on the merits. Those cases never fail to interest me, in part because it seemed (and still seems) to me that the fact that a neutral party (i.e., a judge) sincerely believes that Position X is meritorious is super-powerful evidence that Position X is not frivolous (or at least generally not sanctionable). And I was (and am) surprised at how many of those types of cases exist.
Which is perhaps why this case was particularly interesting to me, in part because it involves a fascinating variant on those prior cases, and one that I hadn't previously thought about when considering those more run-of-the-mill sanction cases. Judge Hawkins holds here that the Free Speech Coalition isn't entitled to fees under the Equal Access to Justice Act (EAJA) -- which authorizes awards when the government's position is not "substantially justified" -- on the ground that numerous jurists (including the district court judge, two dissenters in the Supreme Court, and four dissenters on the Ninth Circuit) voted in favor of the government's position. Pretty much exclusively on this basis, Judge Hawkins reverses the fee award, holding that if so many jurists agree with the government, then its position is -- virtually by definition -- substantially justified.
There's obviously a ton that could be said here. All I'll articulate for now are a couple of brief thoughts. First, if that's the correct rule, then the sanction cases that I referred to above seem clearly wrongly decided -- as I have always believed them to be -- since the standard for finding something to be "frivolous" is clearly a lot tougher than the standard for finding something to be not "substantially justified". Second, notwithstanding this thought, I'm still not totally and completely convinced that just because several judges find a position to be justified that it's always "substantially" justified. Sure, I agree that this fact is pretty darn good evidence, and may well often be conclusive. But I'm not totally convinced that this is the be-all, end-all that Judge Hawkins implicitly perceives it to be. Finally, I think that people with a good background in epistemology and philosophy could have some really interesting insights on this topic, and I'd love to hear them. I'm educated just enough in these fields (for example, I majored, inter alia, in philosophy in college) to know that there's some really interesting stuff here without being smart or knowledgeable enough to articulate these points at a sufficiently deep level. But I'm quite sure there are other people who don't share my deficiencies, and would be interested in hearing their take. Judge Hawkins doesn't really do more than scratch the surface here. It's an interesting scratch, but there's a lot more one could say. And that they'd say it a lot better than I would.
But this is definitely still a case -- and a concept -- worth some thought. It has ramifications that are important not only in EAJA cases, but in a variety of other areas as well.