the context of the EAJA, see, e.g. Perales v. Casillas, 950 F.2d 1066, 1072 (5th Cir.1992) (noting failure of bad faith claim did not mandate conclusion that government’s position was substantially justified); Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir.1987) abrogated on other grounds, 884 F.2d 442 (9th Cir.1989) (bad faith standard "higher than the substantial justification standard"); Gregory C. Sisk, "The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part Two)” 56 La. L.Rev. 1, 54 (1995) (noting that where the government acts in bad faith, this "under mines the 'substantial justification’ for the government's position”), as well as in other areas. Cf. United States v. Truesdale, 211 F.3d 898, 908 (5th Cir.2000) (<HOLDING>). Here we simply conclude that the basis for
holding that a bad faith claim is a tort holding that for the administrative position of the government to be substantially justified it must have a reasonable basis both in law and fact holding that congress did not want the substantially justified standard to be read to raise a presumption that the government position was not substantially justified simply because it lost the case citations omitted holding that in order to establish bad faith claim under hyde amendment criminal defendant must show more than that governments position was not substantially justified holding that the governments position must be justified to a degree that could satisfy a reasonable person and have a reasonable basis in both law and fact citations omitted