Ava P. Trahan, et al. v. Donald T. Regan, Secretary of the Treasury, et al., Appellants, 866 F.2d 1424 (D.C. Cir. 1987)

ORDER

By order dated October 26, 1987, we accepted appellants' suggestion that this case be reheard en banc. 832 F.2d 158 (D.C. Cir. 1987). By subsequent order, we explained the purpose of the rehearing was to consider the proper application of the term "substantially justified" under the Equal Access to Justice Act. We held our proceedings in abeyance, however, pending the Supreme Court's decision in Pierce v. Underwood, --- U.S. ----, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988).

The Supreme Court held in Pierce v. Underwood, ---- - ----, 108 S. Ct. at 2549-53, that the statutory phrase "substantially justified" means justified to a degree that could satisfy a reasonable person, and not, as our case law had declared, "slightly more" than that. In addition, the Supreme Court ruled that an abuse-of-discretion, not a de novo, standard of review applies to district court determinations. Id. at ---- - ----, 108 S. Ct. at 2546-49. Because both the district court, following our precedent, and this court applied a definition of "substantially justified" that the Supreme Court has disapproved, it is

ORDERED by the court en banc, on its own motion, that the panel opinion, 824 F.2d 96 (D.C. Cir. 1987), and the district court opinion, 625 F. Supp. 1163 (D.D.C. 1985), be vacated and that the case be remanded to the district court for fresh consideration of the application for attorney's fees and litigation costs under the standard specified in Pierce v. Underwood.

The Clerk is directed to transmit a certified copy of this order to the District Court in lieu of formal mandate.