- 36 - 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).Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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