It ensures that an eligible applicant is not deterred from seeking review of, or defending against, unjustified government actions. The EAJA does not routinely award attorney's fees and expenses to a prevailing party. While the applicant has the burden of proving eligibility, the government has the burden of demonstrating that its action was substantially justified. The party seeking an award for fees and expenses must submit an application within 30 days of the final disposition in an adversary adjudication. The prevailing party must meet the established eligibility requirements before it can be awarded attorneys' fees and expenses.
Eligibility is determined as of the date of the notice of contest.
The undersigned agrees that supplementation, and not dismissal, would be the appropriate course of action in the present case. The Secretary withdrew item 2 at the beginning of the hearing, and the undersigned vacated items 1 and 3 in her decision and order issued on March 16, 1998. The Secretary must prove that its position was substantially justified. The test of whether the Secretary's action is substantially justified is essentially one of reasonableness in law and fact. Therefore, item 3, which addresses the condition of the scaffold, will be discussed first.