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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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