Did a panel of the Federal Circuit err by entirely exempting the United States as a matter of law from liability for such fees and costs pursuant to the American Rule despite the explicit wording of the statute and the precedent of Gavette and Mortenson that Congress had "expanded" the common law in 2412(b) to shift liability for attorney fees and costs to the United States, subject to the reasonable discretion of the trial court?

Did a panel of the Federal Circuit err by entirely exempting the United States as a matter of law from liability for such fees and costs pursuant to the American Rule despite the explicit wording of the statute and the precedent of Gavette and Mortenson that Congress had 'expanded' the common law in 2412(b) to shift liability for attorney fees and costs to the United States, subject to the reasonable discretion of the trial court?