With a straight face, the NLRB argues a two-person business is not entitled to fees when they proved haircuts are not vital to national defense.
Before reaching my conclusion that the national defense standard was not sufficient on the facts here to assert jurisdiction, I expressly stated that this case fell between the two lines of cases cited above. The latter cases were sufficiently distinguishable from the facts here that they did not compel dismissal of the complaint just as the facts of the older cases were sufficiently distinguishable that they did not compel the assertion of jurisdiction.
The Agency case must be “substantially justified” at all times under the EAJA. The standard is not met simply because a lawyer came up with a brilliant idea to push an argument through the eye of a needle
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