Jerry and Patricia A. Dixon, et al. - Page 36

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          matters that would be necessary to successfully prosecute an                
          appeal against the enormous resources of the federal government”            
          is a special factor under the EAJA); Scarborough v. Nicholson, 19           
          Vet. App. 253, 264 (2005) (rejecting specialization in Supreme              
          Court litigation as a special factor under the EAJA).                       
                    2.   Local Availability of Tax Expertise                          
               Petitioners’ counsel do not fare any better with regard to             
          this factor for the simple reason that tax expertise had little,            
          if anything, to do with the misconduct inquiry phase of this                
          litigation.  Cf. Hyatt v. Barnhart, supra at 252 (even if                   
          counsel’s expertise in Social Security law could warrant a                  
          departure from the EAJA hourly rate cap, “there has been no                 
          satisfactory showing that such expertise was necessary to handle            
          the dispute [interpretation of settlement agreement] that                   
          actually gave rise to the award of attorneys’ fees and costs                
          currently at issue”).  Thus, while we do not question counsel’s             
          tax expertise, such expertise does not support the finding of a             
          special factor under these circumstances.                                   
                    3.   Difficulty of the Issues                                     
               Petitioners assert that the misconduct inquiry phase of                
          these proceedings presented difficult issues relating to                    
          procedural due process, structural defect, “Footnote Nine”                  
          error,33 and standards of proof and review applicable to the                
          doctrine of harmless error.  Petitioners point to DuFresne v.               

          33 See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993).                  

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