dissenting.
Though I agree with much of the majority’s analysis, I cannot concur with its holding that the SEC’s position was not substantially justified. Tuschner can recover fees only if the SEC’s position was not “substantially justified” or if the SEC brought the action in “bad faith.” 28 U.S.C. § 2412(b), (d)(1)(A). The “substantially justified” standard is satisfied when the government had a “reasonable basis both in law and 'fact” for its position. Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). A position “can be justified even though it is not correct, and we believe it can be substantially justified if a reasonable person could think it correct.” Id. at 566 n. 2, 108 S.Ct. 2541. We have concluded that EAJA fees should not be awarded when “at least one permissible view of the evidence leads to the conclusion that the government has shown a reasonable basis in fact and law for its position.” See Jackson v. Bowen, 807 F.2d 127, 130 (8th Cir.1986).
In Pierce, the Supreme Court found that certain “objective indicia” are relevant in determining whether the government’s position was substantially justified, including without limitation, the stage at which the proceedings were resolved, the terms of any settlement agreement entered into by *632the parties, and the views expressed by other courts on the merits. 487 U.S. at 568-569, 108 S.Ct. 2541. The SEC prevailed at several important points during the underlying action.
First, the district court denied Tus-chner’s motion to dismiss the SEC’s action and granted the SEC’s motion for a preliminary injunction after concluding that the evidence supported a finding that Za-hareas and Tuschner & Co. violated the Exchange Act and Tuschner aided and abetted those violations. This court affirmed. The district court subsequently granted the SEC’s motion for summary judgment, while denying Tuschner’s cross motion for summary judgment. In addition, this court’s panel decision reversing the grant of summary judgment was issued over a strong dissent by Judge Bright. Finally, four of the nine judges of this court who considered the SEC’s petition for rehearing en banc voted to grant the SEC’s petition, which would have had the practical effect of vacating the panel’s opinion. The district court concluded that:
[a]ll of these factors individually have, at the very least, some probative force of the existence of substantial justification; collectively, however, these factors stand as a powerful testament to the existence of substantial justification for the SEC’s position.
The government’s ability to convince federal judges at the trial and appellate levels of the reasonableness of its interpretation of the law tends to show that the government was substantially justified in bringing this action. See Sierra Club v. Secretary of the Army, 820 F.2d 513, 519 (1st Cir.1987) (court “readily acknowledge[d] that when the United States wins several rounds but ultimately loses on points, its early success is some evidence of justification which the court should factor into the EAJA analysis”). “Even if the judges’ and Government’s position is ultimately rejected in a final decision on the merits, it is the ‘most powerful indicator of the reasonableness of an ultimately rejected position.’” Herman v. Schwent, 177 F.3d 1063, 1065 (8th Cir.1999) (quoting Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir.1995)).
The majority correctly points out that some success at various stages in the litigation does not automatically grant the government immunity from EAJA liability. In Herman, we reversed the district court’s denial of attorney’s fees under the EAJA holding that the district court abused its discretion in concluding that the government’s position was substantially justified. We rejected the district court’s conclusion because it based its conclusion upon facts and arguments that we had specifically rejected as clearly erroneous and unsupported by the record. 177 F.3d at 1066. Those are not the facts of this case.
Further, the SEC’s position that Zahar-eas was “associated with” and “controlled by” Tuschner was reasonable. In the underlying action, the SEC sought to establish that Zahareas was associated with Tuschner & Co. because sections 15(b)(6)(B)(i) and (ii) of the Exchange Act provide that broker-dealers violate the law when they “associate” with a person subject to a bar order. Section 3(a)(18) of the Exchange Act defines a “person associated with a broker or dealer” and an “associated person of a broker or dealer” to include “any person directly or indirectly controlling, controlled by, or under common control with such broker or dealer, or any employee of such broker or dealer.” 15 U.S.C. § 78c(a)(18).
The SEC presented evidence that Za-hareas was “controlled by” Tuschner & Co. to satisfy section 3(a)(18). There were *633no cases presented that directly address the definition of control in section 3(a)(18). Instead the SEC relied upon holdings that a brokerage firm exercises “control” over a securities salesperson where it has “some indirect means of discipline or influence [short of] actual direction.” Martin v. Shearson Lehman Hutton, Inc., 986 F.2d 242, 244 (8th Cir.), cert. denied, 510 U.S. 861, 114 S.Ct. 177, 126 L.Ed.2d 136 (1993). Although the SEC was mistaken in its interpretation of the “controlled by” language, it convinced several jurists that the position was not only reasonable, but might be right. Accordingly, I would hold that the SEC’s position was substantially justified.