                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2630
                                    ___________

United States Securities and         *
Exchange Commission,                 *
                                     *
                    Appellee,        *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * District of Minnesota.
Nicholas A. Zahareas; Tuschner &     *
Company, Inc.;                       *
                                     *
                  Defendants,        *
                                     *
John M. Tuschner;                    *
                                     *
                   Appellant,        *
                                     *
Euroamerican Securities, S.A.        *
                                     *
                   Defendant.        *
                                ___________

                               Submitted: February 13, 2004
                                  Filed: July 7, 2004
                                   ___________

Before BYE, HEANEY, and SMITH, Circuit Judges.
                            ___________

HEANEY, Circuit Judge.
      John M. Tuschner appeals the denial of his application for attorney’s fees under
the Equal Access to Justice Act (EAJA). For the reasons stated below, we reverse
and remand to the district court for further proceedings consistent with this opinion.

                                I. BACKGROUND

       This case has been in the courts for over six years and is currently before this
court for the fourth time. The facts have been clearly articulated in prior opinions.
We summarize them here for the purposes of this appeal.

       In July 1993, the Securities and Exchange Commission (SEC) settled a civil
enforcement proceeding filed against Nicholas Zahareas resulting in Zahareas being
permanently barred from “associating with” an investment broker, dealer, advisor, or
company or participating in the securities industry in the United States. In 1996,
Zahareas, who was then living in Greece, founded Euroamerican Securities
(Euroamerican), a brokerage and financial consulting company doing business in
Athens, Greece. Also in 1996, Zahareas entered into an agreement with Tuschner in
which Zahareas would recruit Greek investors to open accounts with Tuschner & Co.,
a securities broker-dealer located in Minneapolis, Minnesota, to purchase shares in
an initial public offering that Tuschner & Co. was underwriting.

       In 1997, the SEC filed suit against Tuschner, Tuschner & Co., Zahareas, and
Euroamerican alleging that Zahareas’s relationship with Tuschner & Co. violated the
1993 bar order and that the defendants had violated various provisions of the
Securities and Exchange Act. On January 28, 1998, the district court denied the
defendants’ motions to dismiss for lack of jurisdiction and granted the SEC’s motion
for a preliminary injunction. The defendants appealed the injunction and a divided
panel of this court affirmed the district court’s order. SEC v. Zahareas, 167 F.3d 396
(8th Cir. 1999).



                                         -2-
      In 2000, after extensive discovery, the SEC and Tuschner brought cross
motions for summary judgment.1 The district court granted the SEC’s motion and
permanently enjoined Tuschner from violating, and aiding and abetting violations,
of 15 U.S.C. § 78o(b)(6)(B)(i) and (ii) of the Securities and Exchange Act. SEC v.
Zahareas, 100 F. Supp 2d. 1148, 1156 (D. Minn. 2000). On appeal, again in a divided
panel decision, this court reversed the district court, vacated the permanent
injunction, and remanded for entry of judgment in favor of Tuschner. SEC v.
Zahareas et al., 272 F.3d 1102 (8th Cir. 2001). The SEC’s petition for rehearing was
denied.

       Tuschner then filed for attorney’s fees pursuant to 28 U.S.C. § 2412(b) and
(d)(1)(A), asserting that the SEC’s case was not substantially justified and was
pursued in bad faith. The district court denied the motion holding that: (1) the SEC’s
case was reasonable, and therefore substantially justified; (2) the SEC’s case was
novel, therefore special circumstances dictated against awarding fees; and (3)
Tuschner was ineligible for an award because he failed to demonstrate that he actually
incurred any attorney’s fees. Tuschner now appeals.

                     II. EQUAL ACCESS TO JUSTICE ACT

       The EAJA provides that a prevailing party is entitled to an award of fees and
expenses in any action brought by or against the United States “unless the court finds
that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). In Pierce v.
Underwood, the Supreme Court defined substantially justified as having a
“reasonable basis both in law and fact,” or being “justified in substance or in the
main.” 487 U.S. 552, 565 (1988) (citations and internal quotations omitted).
Therefore, the government’s position can be substantially justified even though


      1
          The other defendants settled with the SEC.

                                         -3-
ultimately incorrect, as long as “a reasonable person could think it correct.” Id. at 566
n.2. The government, however, is not exempt “from liability under the EAJA merely
because it prevailed at some interim point in the judicial process.” Sierra Club v.
Sec’y of Army, 820 F.2d 513, 517 (1st Cir. 1987). The fact that the district court in
this case found for the SEC is a factor weighing in the government’s favor, but the
district court’s judgment “is not sufficient, in and of itself, to show that the
Government’s position was substantially justified.” Davidson v. Veneman, 317 F.3d
503, 507 (5th Cir. 2003). Rather, “[t]he most powerful indicator of the
reasonableness of an ultimately rejected position is a decision on the merits and the
rationale which supports that decision.” Friends of Boundary Waters Wilderness v.
Thomas, 53 F.3d 881, 885 (8th Cir. 1995) (reversing the district court and awarding
attorney’s fees). Moreover, the government must show “that it acted reasonably at
all stages of the litigation.” Davidson, 317 F.3d at 506 (citing 28 U.S.C. §
2412(d)(2)(D)); see also Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir.
1985) (stating that “the position of the government” includes “the government’s
positions at both the prelitigation and litigation states”). The government bears the
burden of proving that its position was substantially justified. Friends of Boundary
Waters Wilderness, 53 F.3d at 885.

        The substantial justification standard, however, should not be used to deter the
government from bringing cases of first impression or offering novel arguments. The
special circumstances exception “is a ‘safety valve’ designed to ‘insure that the
Government is not deterred from advancing in good faith the novel but credible
extensions and interpretations of the law that often underlie vigorous enforcement
efforts.’” Russell v. Nat’l Mediation Bd., 775 F.2d 1284, 1290 (5th Cir. 1985)
(quoting H.R. Rep. No. 96-1418 at 11 (1980)). Still, the mere fact that the
government advances a novel argument does not automatically insulate it from EAJA
liability. Keasler, 766 F.2d at 1234 (“That a case presents an issue of first impression
in the forum does not ipso facto make the government’s position in the litigation
reasonable.”); Russell, 775 F.2d at 1290 (stating that the special circumstances

                                          -4-
exception “merely preserves government efforts to present creative legal
interpretations, which though not yet commonly accepted, still merit the court’s
careful examination” (citation and internal quotations omitted)).

        In addition, the EAJA provides that the “United States shall be liable for such
fees and expenses to the same extent that any other party would be liable under the
common law.” 28 U.S.C. § 2412(b). Therefore, the government may be liable for
attorney’s fees if it acted in bad faith. Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 219
(D.C. Cir. 1991); Brown v. Sullivan, 916 F.2d 492, 495 (9th Cir. 1990). “Bad faith
has been broadly defined to include acts of ‘obdurate obstinacy,’ or conduct that has
compelled the plaintiff to litigate recognized legal rights clearly owed.” Haycraft v.
Hollenbach, 606 F.2d 128, 133 (6th Cir. 1979) (per curiam) (citation omitted).
Attorney’s fees can be awarded if the “bad faith (1) occurred in connection with the
litigation, or (2) was an aspect of the conduct giving rise to the lawsuit.” Am. Hosp.
Ass’n, 938 F.2d at 219. This basis for recovery is a narrow one and is to be “imposed
only in exceptional cases and for dominating reasons of justice.” Brown, 916 F.2d at
495 (citation and internal quotations omitted).

                                   III. ANALYSIS

       We review the district court’s decision denying attorney’s fees under the EAJA
for an abuse of discretion; reviewing conclusions of law de novo and findings of fact
for clear error. United States Dep’t of Labor v. Rapid Robert’s Inc., 130 F.3d 345,
347 (8th Cir. 1997).

A. Substantial Justification

       The district court cited to several factors in finding that the SEC’s case was
substantially justified. First, the district court referred to the previous district and
circuit court holdings in the government’s favor. According to the district court, the

                                          -5-
SEC’s victories below “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.” (Appellant’s Addendum B at 11.) Second, citing to several cases in which
our court interpreted the word “control,” the district court found that the SEC’s
argument that Zahareas was controlled by Tuschner was reasonable in law.
According to the district court, although our court ultimately disagreed with the
conclusion that Tuschner controlled Zahareas, “the SEC’s legal position was at least
a colorable, reasonable attempt at defining an otherwise undefined phrase.” (Id. at
12.) Third, relying on the undisputed communications and dealings between
Tuschner and Zahareas, the district court found that the SEC’s factual basis was
reasonable.

        The fact that the district court and our court found for the SEC at various stages
in the litigation does not automatically grant the government immunity from EAJA
liability. See Herman v. Schwent,177 F.3d 1063 (8th Cir. 1999) (reversing district
court and granting attorney’s fees); Friends of the Boundary Waters Wilderness, 53
F.3d at 885 (holding that the district court erred in denying fees by relying “too
heavily upon its original opinion and Judge Magill’s dissent from our decision
reversing that opinion”). Instead, we must fully analyze the facts and law under the
applicable standards. In addition, we have the benefit of looking at the case in its
entirety, reviewing all the issues presented and the SEC’s actions both prior to and
during the litigation. From this vantage point, we find that the SEC’s case was not
substantially justified.

       The SEC’s legal theory in this case went through several twists and turns.
Originally, the SEC argued that Zahareas was akin to an employee of Tuschner & Co.
and, therefore, was “associated with” Tuschner & Co. In granting the preliminary
injunction, the district court agreed with the SEC and found both that Zahareas was
an agent of Tuschner & Co., and that “Zahareas exerted control over Tuschner & Co.”

                                           -6-
Although our court upheld the preliminary injunction, Judge Morris Sheppard Arnold,
in his dissent, recognized that the SEC had “abandoned its original position in favor
of an argument that Mr. Zahareas was an ‘associated person’ because he was under
Tuschner & Co.’s control.” Zahareas, 167 F.3d at 397. When the case returned to our
court on appeal from the grant of a permanent injunction, Judge Bye, writing for the
majority, noted that, “the SEC has again altered its theory of liability.” Zahareas, 272
F.3d at 1105.

        The SEC’s changing legal theories were accompanied by unsupportive facts.
The SEC claimed that the relationship between Tuschner and Zahareas was so close
that Tuschner effectively “controlled” Zahareas. The findings of our court, however,
directly contradict this assertion. Our court found that Zahareas was never on
Tuschner & Co.’s payroll, that Tuschner had never visited Zahareas’s office and knew
little about how Zahareas conducted his business, and that Zahareas conducted his
own financial consulting business with his own Greek clients and his own employees,
none of whom were hired by or took direction from Tuschner. “Simply put, the SEC
failed to present evidence sufficient for a reasonable jury to conclude that Zahareas
was ‘controlled by’ Tuschner.” Id. at 1107.

       The SEC’s changing legal theories and nonconforming facts were likely a
result of its failures during its investigation of Tuschner. The SEC fell short on
several procedural fronts while investigating Zahareas and Tuschner. First, the SEC
failed to obtain testimony or documents from Zahareas before filing suit. The SEC
entered this litigation with the belief that Zahareas established Euroamerican
specifically to conduct business with Tuschner & Co., when in fact Euroamerican is
a financial consulting business in its own right, conducting business with several
other Greek companies which trade in Greek securities and employing more people
than Tuschner & Co. ever did. Second, the SEC failed to make inquiries of Greek
securities regulators as to the business activities of Euroamerican until nearly two
years after it filed an action against Tuschner. Third, the SEC failed to allow

                                          -7-
Tuschner to make a “Wells Submission.” Pursuant to 17 C.F.R. § 202.5(c), persons
involved in an SEC investigation may submit a written statement to the SEC before
its staff seeks approval for an action from the Commission. The written statement is
attached to any memoranda recommending to the Commission that an action be
commenced. Id. Although the SEC argues that a Wells Submission is not a right, the
SEC investigator responsible for this case stated that he had never before been
involved in an SEC investigation in which a Wells Submission had not been utilized.
Fourth, the SEC failed to obtain approval for this action during a meeting of all the
Commissioners. According to Tuschner, SEC actions are normally authorized after
a meeting with all five members of the Commission and relevant members of the
staff. These meetings allow for discussion and debate within the SEC and result in
approval of an action only after a consensus is reached. In this case, the
Commissioners’ approval was obtained by “seriatim” consideration. That is, the staff
approached each of the Commissioners individually to solicit their approval for this
action. Therefore, the action against Tuschner was approved of by each
Commissioner without the benefit of a meeting or group discussion. The SEC argues
that seriatim consideration is a perfectly appropriate means of seeking approval.
Pursuant to 17 C.F.R. § 200.42(a), however, individual approval of an action is
allowed when a full meeting is “unnecessary in light of the nature of the matter,
impracticable, or contrary to the requirements of agency business.” There is nothing
about this case which causes us to think that a full meeting was neither
“unnecessary,” nor did the SEC present any evidence that a full meeting was
“impracticable.”

      The SEC argues that the information eventually obtained from Zahareas and
the Greek regulators was not dispositive of the SEC’s case. Perhaps not, but the
information would have aided the SEC in determining the extent and significance of
Zahareas’s relationship with Tuschner & Co. This, no doubt, would have affected the
SEC’s decision to bring an action and the legal theory under which an action would
have been brought. In addition, had Tuschner and Zahareas been able to make a

                                        -8-
Wells Submission, they would have presented the SEC with relevant information
allowing the SEC to come to the same conclusion that our court ultimately did; that
is, that Euroamerican was not founded solely to do business with Tuschner & Co.,
that Euroamerican was a financial consulting business in its own right, that it was
unnecessary, and perhaps inappropriate, for the SEC to attempt to “protect” Greek
investors, and that Tuschner & Co. did not “control” Zahareas. Indeed, had Tuschner
been afforded the opportunity to make a Wells Submission outlining his position, and
had the entire Commission met to deliberate, we believe that this litigation would
never have occurred.

       It is not our intent to tell the SEC how to conduct its investigations or how to
decide when to bring an action. In this case, however, we find that the SEC’s failure
to appropriately and adequately investigate Tuschner according to its own rules and
guidelines, led the SEC to bring an action based on an ungrounded and
unsubstantiated legal theory, and without sufficient factual support. Accordingly, we
find that the SEC’s case was not substantially justified.

B. Special Circumstances

       The district court held that an award of attorney’s fees was not warranted in
this case because the novel argument presented by the SEC fell under the special
circumstances exception. See 28 U.S.C. § 2412(d)(1)(A). According to the district
court, “[g]iven the strong appearance of impropriety, from the very beginning and
throughout, the SEC was fully justified in attempting to reach these activities by
advancing a purportedly novel, yet credible, interpretation of the securities laws.”
(Appellant’s Addendum B at 17.)

       We find it difficult, however, to protect the SEC from liability due to its
presentation of a novel argument in this case when the SEC failed to thoroughly
investigate before bringing suit. See United States v. Estridge, 797 F.2d 1454, 1458

                                         -9-
(8th Cir. 1986) (affirming the district court’s award of fees under the EAJA where the
government did not “diligently investigate” before initiating an action). The special
circumstances exception seeks to allow the SEC to vigorously enforce the securities
laws. Such “vigorous enforcement,” however, should not be protected when the SEC
fails to diligently investigate the parties involved in the action and circumvents its
own guidelines in seeking approval to bring an action. As discussed above, these
failures and omissions led the SEC to bring an action against Tuschner which was
unwarranted, wreaking havoc on Tuschner’s professional life, and ultimately causing
his business to go bankrupt. We refuse to apply the special circumstances exception
to protect the SEC from its own failures and omissions.

C. Bad Faith

      An award of attorney’s fees for government actions taken in bad faith is only
available in “exceptional circumstances.” Havrum v. United States, 204 F.3d 815, 819
(8th Cir. 2000) (citing Brown, 916 F.2d at 495). Although the SEC’s actions were
not substantially justified, we cannot say that the SEC’s actions were “vexatious,
wanton or oppressive.” Brown, 916 F.2d at 495). Therefore, we hold that the SEC’s
conduct was not in bad faith and did not violate 28 U.S.C. § 2412(b).

D. Eligibility for an Award

      The goal of the EAJA is to remove the deterrent effect of having to pay
attorney’s fees to defend against unreasonable government action. SEC v. Comserv
Corp., 908 F.2d 1407, 1415 (8th Cir. 1990). The EAJA provides for the award of
attorney’s fees if: (1) the person is a prevailing party; (2) the individual’s net worth
did not exceed $2,000,000 at the time the civil action was filed; and (3) the fees and
expenses were “incurred by that party in [the] civil action” in which it prevailed. 28
U.S.C. § 2412(d)(1)(A)-(2)(B).



                                         -10-
       It is undisputed in this case that Tuschner is a prevailing party. What is at
issue, however, is whether Tuschner actually incurred any fees. See Comserv, 908
F.2d at 1414 (stating that “fees are ‘incurred’ when there is a legal obligation to pay
them”). Tuschner bears the burden of proving that he has incurred legal fees under
the EAJA. See NAACP v. Donovan, 554 F. Supp. 715, 718 (D. D.C. 1982) (stating
that “the burden of proof is always on the applicant to prove entitlement to fees”).

       According to the district court, because Tuschner & Co. was contractually
obligated to pay Tuschner’s fees, Tuschner never actually “incurred” any fees. Even
though Tuschner stated that he agreed to be personally responsible for the fees, the
district court found that “no such agreement has been produced by Tuschner or his
attorneys [and] no evidence has been produced indicating that Tuschner ever actually
paid a bill.” (Appellant’s Addendum B at 20.)

        Tuschner submitted in an affidavit that Tuschner & Co. agreed to pay for his
legal expenses, but later reneged on that agreement. Since entering that agreement,
Tuschner & Co. has dissolved, filed for bankruptcy, and has failed to pay the fees.
It follows, both logically, and according to Tuschner’s sworn statement, that he is
currently obligated to pay the fees. Tuschner, and his former company, Tuschner &
Co., has been embroiled in litigation with the SEC for over six years. As a result,
Tuschner has been unable to work in his chosen profession and his company has gone
bankrupt; all due to an action brought by the SEC which we find to have lacked
substantial justification. The district court listed several items that Tuschner should
have presented to prove that he actually incurred fees; such as a written agreement
between Tuschner and his counsel, copies of bills, or cancelled checks. We know of
no case that requires such documentation. Both Tuschner and his attorney have
submitted affidavits stating that Tuschner & Co. has not paid the fees, that Tuschner
& Co. has gone bankrupt and no longer exists, and that Tuschner has agreed to be
responsible for the fees. The record lacks any evidence to the contrary and, therefore,



                                         -11-
we hold that Tuschner has indeed “incurred” fees, making him eligible for an award
pursuant to the EAJA.

                                   CONCLUSION

       For the foregoing reasons we find that the SEC’s case was not substantially
justified, that special circumstances do not dictate against awarding fees, and that
Tuschner did incur legal fees for the purposes of the EAJA. Accordingly, we reverse
the district court and remand for proceedings consistent with this opinion.

SMITH, Circuit Judge, 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 (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. 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 the parties, and the views



                                         -12-
expressed by other courts on the merits. 487 U.S. at 568-569. The SEC prevailed at
several important points during the underlying action.

       First, the district court denied Tuschner’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 Zahareas 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


                                          -13-
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 Zahareas 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 Zahareas was “controlled by” Tuschner &
Co. to satisfy section 3(a)(18). There were no 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 (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,

                                         -14-
but might be right. Accordingly, I would hold that the SEC's position was
substantially justified.
                         ______________________________




                                  -15-
