concurring in part and dissenting in part:
I concur fully in Part I of Judge Skopil’s opinion, which clearly demonstrates that the Secretary’s regulation is inconsistent with the controlling statute. I dissent, however, from Part II, which reverses the district court’s award of attorneys’ fees under the Equal Access to Justice Act.
The question under review is whether “the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The majority opinion finds it unnecessary to resolve the question whether this standard requires mere reasonableness, or something more than reasonableness, because it concludes that the government has met either standard. I cannot agree.
Part I of Judge Skopil’s opinion eloquently sets forth the reasons why I conclude that the position of the government certainly fails to meet the “more than reasonable” standard applied by the district court, and would also fail to meet a “mere reasonableness” standard. The governing statute was clear on its face; agencies were required to “take all necessary steps to correct any overpayment.” 42 U.S.C. § 602(a)(22). The legislative history, as discussed in the majority opinion, only reinforces the plain words of the statute. Against this background, it was the duty of the Secretary to write a regulation carrying out the clearly expressed intent of Congress. Instead, he wrote a regulation in conflict with that intent and, when challenged, he chose to litigate.
The majority relies heavily on the fact that the validity of the regulation had not previously been litigated. But statutes are law; when Congress speaks clearly, its command needs no blessing from the courts to become fully effective. The Secretary is not entitled to contest in court the plain words of the statute, fully supported by its legislative history, without the government’s becoming liable for the fees such litigation causes the opposing party reasonably to incur. In short, when the Secretary is quite wrong, as he was here, fees should follow.
Had my view on this question prevailed, it might well have been necessary for the panel to resolve the question of the appropriate test to determine whether the position of the United States was substantially justified. I must say that I have some sympathy with the view that the difference between the two standards may be “more semantic than real.” Pullen v. Bowen, 820 F.2d 105, 108 (4th Cir.1987). In any event, I have not prevailed, so it is unnecessary for me, as for the panel, to resolve the issue. If the proper standard is more than mere reasonableness, as the district court stated, I would affirm the award of fees as a clearly appropriate exercise of discretion. If the standard is mere reasonableness, I would remand to the district court to exercise its discretion under that standard, content that this record would support an award if the district court chose to make one.