concurring in part and dissenting in part:
I concur with the majority as to the timeliness of the appellant’s fee application. I respectfully dissent because I do not believe that the district court abused its discretion in finding that the Commission was substantially justified in pursuing its position on the merits.
The Commission lost its claim on the merits — in the only way it could lose on the merits of that claim — upon a finding that it adopted an unreasonable interpretation of the “commercial purposes” provision of 2 U.S.C. § 438(a)(4) (1988) and its corresponding regulation, 11 C.F.R. § 104.15(c) (1991). See Federal Election Comm’n v. Political Contributions Data, Inc., 943 F.2d 190, 196 (2d Cir.1991). Nevertheless, PCD was not entitled to fees if, inter alia, “the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A) (1988) (“EAJA”). Substantial justification (like the ruling on the merits) is a question of reasonableness. Pierce v. Underwood, 487 U.S. 552, 564 n. 2, 108 S.Ct. 2541, 2549 n. 2, 101 L.Ed.2d 490 (1988) (“if a reasonable person could think it correct”). However, in the EAJA stage, the question is whether it was unreasonable for the Commission to litigate the reasonableness of its statutory interpretation. The EAJA reasonableness question is therefore considered from a different point of view: “not what the law now is, but what the Government was substantially justified in believing it to have been.” Id. at 561, 108 S.Ct. at 2548. Whether the Commission was substantially justified is a “historical” question. Id.
The majority (a) casts the issue as “the extent to which we are bound” by the unreasonableness findings of the previous panel; (b) adopts the Ninth Circuit rule that the EAJA panel is so bound if the first panel carefully considered the language and legislative history of the statute in question; and (c) holds that “the earlier panel’s careful analysis of the government’s position allows no further consideration of this issue.” I disagree with this holding on several grounds, not least because it tends to frame the EAJA issue as a critique of the opinion on the merits: Was the merits opinion carefully considered? Was it clear and categorical? Was it inevitable?
At least in the first instance, this appeal concerning substantial justification should be resolved by reference to the district court opinion, rather than to this Court’s 1991 opinion. Nothing in the 1991 opinion requires that we now reverse the district court’s ruling on the distinct, historical issue of substantial justification. Appellant’s sale of donor lists for profit was not a “commercial purpose” under § 438(a)(4), as the 1991 *388panel held, but that result was not a foregone conclusion. The 1991 opinion found that § 438(a)(4) cannot be literally applied; that § 438(a)(4) was made “skeletal” in order to permit the Commission to define the “commercial purposes” prohibition; that “we must ... seek further guidance outside the FECA itself’; and that “the best guidance” is provided by legislative history. 943 F.2d at 194-98. A holding of unreasonableness at the merits stage, however sound, is not necessarily a predictable result, especially where it turns in large part (as here) on legislative history.
As to the district court’s opinion, we owe it more deference than the majority opinion gives it. The reasonableness standard applies at both stages of review (merits and EAJA), but reasonableness for EAJA purposes is considered from a different perspective and depends on a variety of factors that the district court may be best situated to evaluate. Pierce v. Underwood, 487 U.S. at 559-563, 108 S.Ct. at 2547-2549. The Supreme Court in Pierce therefore deferred to the district court’s judgment, holding that the issue of substantial justification presents “a multifarious and novel question, little susceptible, for the time being at least, of useful generalization, and likely to profit from the experience that an abuse-of-discretion rule will permit to develop.” Id. at 562, 108 S.Ct. at 2548.
In the case on appeal, the district court’s carefully considered opinion held that the Commission was substantially justified ex ante in pursuing a position that the district court upheld on summary judgment, but that this Court, by way of a different analysis, held to be unreasonable. The district court has given detailed consideration to several factors, including the clarity of the governing law at the time the Commission acted; the foreseeable length and complexity of the litigation; and the consistency of the Commission’s position. This Court previously considered these factors to be relevant. See Dubose v. Pierce. 761 F.2d 913, 918 (2d Cir.1985), vacated on other grounds, 487 U.S. 1229, 108 S.Ct. 2890, 101 L.Ed.2d 924 (1988).1 I think the district court’s findings easily withstand review for abuse of discretion. To the extent the majority expands the 1991 reasonableness analysis to resolve the EAJA issue, the majority is engaging in de novo review. To the extent the majority relies on the 1991 opinion’s outcome, the majority treats EAJA as a fee-shifting statute.
. In Dubose v. Pierce, 761 F.2d 913 (2d Cir.1985), this Court conducted a de novo review, and reversed the lower court’s finding that the Government’s position was not- substantially justified. 579 F.Supp. 937 (D.Conn.1984). The Supreme Court vacated our judgment in light of Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988), which held that the proper standard of review is abuse of discretion. On remand, applying that deferential standard, this Court affirmed the district court's finding. Dubose v. Pierce, 857 F.2d 889, 892 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989).