- 37 -
Commissioner, 26 F.3d at 107, in which the Court of Appeals
framed the issue as one of structural defect versus harmless
error, as giving rise to the need to address the specified
difficult issues.34 The Court of Appeals, however, made no
reference to any of those issues in its Dixon V opinion. Rather,
the Court of Appeals focused solely on the issue of fraud on the
court--specifically, whether fraud on the court requires a
showing of prejudice (i.e., whether it is properly the subject of
harmless error analysis). The court’s 1-paragraph (with
accompanying footnote) disposition of that issue, see Dixon v.
Commissioner, 316 F.3d at 1047 & n.9, belies petitioners’
assertion that the relevant issues in the case were sufficiently
difficult to justify a departure from the statutory rate cap.
Cf. Golembiewski v. Barnhart, 382 F.3d at 724 (rejecting the
District Court’s contention that the complexity of the case
warranted a finding of substantial justification under the EAJA;
“our opinion does not reveal a complex case”).
4. Other Possible Special Factors
a. In General
In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme
Court recognized that the language of the EAJA admits of other
possible special factors in addition to the statutory example of
34 In fairness to petitioners, they took their cue from us
in that regard; we framed our analysis in Dixon III in terms of
structural defect versus harmless error in response to DuFresne.
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