MARIAN BLANK HORN, Judge.
Plaintiff Dexter Small filed an application for attorney's fees and other expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (2012), in an effort to recover the attorney's fees and reasonable expenses he incurred while litigating the above-captioned case. Plaintiff's motion for attorney's fees and expenses comes after litigation in this court arising from plaintiff's allegedly improper administrative separation from the United States Army (Army) by defendant. Plaintiff alleges that he is entitled to recover attorney's fees and costs pursuant to EAJA because he "was a prevailing party and because the Government's position was not substantially justified" throughout the litigation of this case.
FINDINGS OF FACT
Plaintiff enlisted in the Army on December 1, 1997 and continued his service until February 25, 2011, when he was administratively discharged from the Army. During his cumulative military service, plaintiff served two tours in Kosovo, two tours in Iraq, and one tour in Afghanistan. From March 28, 2007 to April 30, 2007, plaintiff was deployed to Salah Ad Din, Iraq, in support of Operation Iraqi Freedom. While in Iraq, plaintiff was injured during a raid with his unit, when the house Mr. Small's platoon approached was detonated by a remotely-triggered explosive device. Plaintiff was medically evacuated by helicopter to the Balad Joint Services Hospital, Iraq, where he was treated for a concussion and bruises to his extremities. Plaintiff later returned to his unit and completed his tour of duty in Iraq. Shortly after his hospitalization, on March 29, 2007, plaintiff assaulted a detained Iraqi by grabbing him by the throat, placing a loaded M-9 pistol to his head, and striking him on the forehead with the pistol. Plaintiff's punishment under Article 15 of the Uniform Code of Military Justice for his actions on March 29, 2007 consisted of a reduction in rank to Sergeant (and a reduction in pay grade to E-5) (suspended for six months), a forfeiture of $1,545.00, and an oral admonishment.
After completing his tour of duty in Iraq, upon plaintiff's return to the United States in 2008, plaintiff was assigned to the Warrior Transition Battalion at Fort Bragg, North Carolina, where his assigned primary mission was treatment and/or Medical Evaluation Board processing. The parties have stipulated that, on February 6, 2009, plaintiff Small was diagnosed with Post-Traumatic Stress Disorder (PTSD) by a clinical psychologist.
The administrative record in this case reflects an extensive history of medical care and treatment received by plaintiff at the Womack Army Medical Center in Fort Bragg. Upon his arrival in Fort Bragg, on June 17, 2008, plaintiff was evaluated by Dr. Kirkland at the Womack Army Medical Center Psychology Department, who noted that plaintiff suffered from post-concussion syndrome, depression and adjustment disorder. Two days later, on June 19, 2008, Dr. Cannon at Fort Bragg indicated that plaintiff had a primary diagnosis of PTSD and referred him for a further psychiatric consultation. According to plaintiff's medical records, on July 1, 2008, plaintiff underwent a neurological evaluation at Fort Bragg by Dr. Galvis, "following [plaintiff's] complaints of short-term memory loss." Plaintiff's medical records indicate that he was tested for traumatic brain injury on July 1, 2008 in order to assess his cognitive abilities. Based on the test results, Dr. Galvis described plaintiff's cognitive abilities as moderately impaired and recommended plaintiff undergo cognitive therapy treatment due to his traumatic brain injury. Plaintiff participated in cognitive therapy for several weeks, and, on August 20, 2008, Dr. Galvis retested plaintiff's cognitive abilities and determined that plaintiff had "met therapy goals" and "maximized functional gains in therapy" such that "cognitive therapy is no longer warranted."
On October 15, 2008, plaintiff was evaluated by another physician, Dr. Camos, who indicated that plaintiff had been diagnosed with TBI and PTSD. Dr. Camos noted that, at plaintiff's request, Dr. Camos was referring plaintiff to an MOS [Military Occupational Speciality]/Medical Retention Board (MMRB). Dr. Camos indicated in the referral memorandum that plaintiff's conditions were medically disqualifying pursuant to "AR [Army Regulation] 40-501, Chapter 3," and that an MMRB should be initiated.
In February 2009, plaintiff's chain of command directed that he undergo a mental health evaluation, or a Command Directed Mental Health Evaluation (CDMHE). Accordingly, on February, 6, 2009, Dr. Krolick administered to plaintiff a "CDMHE because of alleged incidents of lying and making false accusations, failure to obey an order about paying child/family support, a history of UCMJ for mistreatment of a prisoner, and pending UCMJ or Court Martial for disobeying an order." Dr. Krolick, a clinical psychologist, concluded in his mental status evaluation report that plaintiff's diagnosis represented PTSD; but indicated that plaintiff met the retention requirements of Chapter 3, AR 40-501, that "no restrictions were necessary," and that there was "no evidence that his condition would warrant disposition through medical channels." Mr. Small continued to receive mental health care from Dr. Krolick during his assignment to the WTB until the time of his separation from the Army. A review of the administrative record indicates that plaintiff was never found by Dr. Krolick to fail medical retention standards.
On December 28, 2009 the Fort Bragg Consolidated Installation MOS/Medical Retention Board (MMRB) released a memorandum regarding its evaluation of plaintiff Small. The memorandum stated that, on October 29, 2009, the MMRB evaluated plaintiff's ability to perform the physical requirements of his military occupational specialty based "on a thorough review of his most recent permanent physical profile dated 15 October 2008 and all pertinent records and reports." The MMRB determined that "SSG Small's limitations imposed by his permanent profile are so prohibitive they preclude retraining and reclassification into any MOS [Military Occupational Specialty] in which the Army has a requirement." The MMRB stated: "[t]he Soldier's ability to satisfactorily perform the duties of his office, grade, rank, or rating in such a manner as to reasonably fulfill his military obligation on active duty is questionable." Consequently, the MMRB directed plaintiff's commander to "initiate immediate coordination with the Medical Treatment Facility Physical Evaluation Board Liaison Officer (PEBLO) to obtain additional information and the scheduling of an MEB." The MMRB also stated that:
The MMRB's findings and recommendations regarding plaintiff Small were approved on December 11, 2009 by Major General Allyn, Deputy Commanding General, Fort Bragg, North Carolina.
Plaintiff began pre-MEB processing in January 2010, but an MEB was never commenced.
On March 31, 2010, plaintiff's company commander, Captain Romey Smith, Jr., notified plaintiff of his intent to process him for separation under Army Reg. 635-200, Active Duty Enlisted Separations, Chapter 14-12c, for commission of a serious offense. During his stay at Fort Bragg, plaintiff was repeatedly reprimanded and counseled, over a period of 23 months from June 2008 to April 2010, for failing to obey orders or regulations, failing to report to his assigned place of duty, insubordinate conduct, and for missing appointments. Because plaintiff was being considered for administrative separation from the military in accordance with Army Regulation 635-200 due to misconduct, plaintiff's commander requested a behavioral health evaluation of plaintiff Small. On April 8, 2010, plaintiff was evaluated by Dr. Grohmann, a Clinical Psychology Resident at Womack Army Medical Center, "at the [plaintiff] commander's request . . . pertaining to separation under CH 14-12, AR 635-200." In the Report of Behavioral Health Evaluation, Dr. Grohmann found plaintiff to be suffering from PTSD and major depressive disorder. Dr. Grohmann observed that although "this [service member] is mentally responsible, can distinguish right from wrong, and possesses sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings," plaintiff nevertheless "has a psychiatric condition that is of sufficient severity to warrant disposition through military medical channels." Dr. Grohmann indicated on the Report of Behavioral Health Evaluation form: "The Service member does not meet medical retention standards as defined by AR 41-501, and was referred to the Physical Evaluation Board (PEB)."
Subsequently, on June 21, 2010, Captain Smith, plaintiff's commander, initiated administrative proceedings to separate plaintiff from the Army pursuant to Army Regulation 635-200, Active Duty Enlisted Administrative Separations, Chapter 14, Paragraph 14-12c, commission of a serious offense. Specifically, in the memorandum notifying plaintiff Small of Captain Smith's intention to recommend plaintiff's discharge, Captain Smith explained:
Captain Smith recommended that plaintiff receive an Other than Honorable characterization of service discharge. After plaintiff received the memorandum regarding his proposed discharge and consulted with counsel, plaintiff elected to have a hearing regarding the proposed separation action before an administrative Board. Following plaintiff's request for a hearing, the administrative separation action pertaining to plaintiff Small was referred to the standing Warrior Transition Battalion Board "to determine whether SGT Small should be separated from the United States Army prior to the expiration of his current term of service, pursuant to the provisions of Army Regulation 635-200, Chapter 14, Paragraph 12c, for commission of a serious offense."
On December 10, 2010, an Administrative Separation Board convened at Fort Bragg pursuant to Army Regulation 635-200 to consider plaintiff's case. The Board consisted of three service members and considered nine different instances of plaintiff's alleged misconduct. After presentation of evidence by both parties, including testimony of witnesses, and hearing plaintiff's unsworn statement, during which plaintiff was represented by counsel, the Board deliberated for approximately forty minutes and found that plaintiff Small had committed the alleged misconduct. The Board recommended that plaintiff be discharged from the Army with an Other Than Under Honorable Conditions characterization of service.
Following the Board's recommendation, on December 22, 2010, plaintiff's counsel submitted a memorandum to the separation authority, Commander of the XVIII Airborne Corps, Fort Bragg, North Carolina, requesting medical processing for plaintiff. In the memorandum, plaintiff's counsel stated:
(emphasis in original).
On February 4, 2011, in response to plaintiff's counsel's December 22, 2010 memorandum, "an administrative law attorney," Captain Amy McCarthy, completed a legal review of the administrative separation proceedings, and noted that "[n]o evidence contained in this record shows that any medical treatment facility commander or attending medical officer has determined that SGT Small does not meet the medical fitness standards for retention, nor is there evidence that SGT Small has begun the Medical Evaluation Board (MEB) process." Captain McCarthy concluded that the Board's December 10, 2010 proceedings complied "with the legal and procedural requirements of AR 635-200 and AR 15-6," and that the proceedings were legally sufficient.
On February 11, 2011, after a review of "the entire case file and all matters submitted regarding SGT Dexter Small," the General Court Martial Convening Authority, Major General Rodney O. Anderson, approved "[t]he findings and recommendations of the administrative separation board" and "direct[ed] that SGT Small be discharged from the U.S. Army with an
The above-captioned case began in this court on May 2, 2011, when plaintiff Small filed a complaint in the United States Court of Federal Claims alleging that his administrative separation from the Army was improper. Plaintiff subsequently filed an amended complaint on September 2, 2011, and a second amended complaint on February 20, 2015, following remand proceedings at the Army Board of Correction of Military Records (ABCMR). In his complaint, plaintiff argued that his February 25, 2011 administrative separation from the Army, pursuant to the Army Regulation 635-200 (June 6, 2005)
On December 23, 2011, pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), defendant moved to dismiss certain of plaintiff's claims for military disability retired pay and reinstatement to the Army in order to receive an MEB on the basis that the court lacked subject matter jurisdiction and that plaintiff had failed to state a claim for relief. At the same time, defendant also moved to remand to the ABCMR plaintiff's remaining claims relating to whether plaintiff's discharge was proper. Defendant argued that "it would serve judicial economy and be in Mr. Small's best interests to voluntarily dismiss his complaint, without prejudice, so that he may bring all of his claims before the ABCMR for consideration at the same time." According to defendant, the ABMCR "possesses the authority to consider all of Mr. Smalls' [sic] claims, including his claims for disability, back-pay, and condition of discharge." In plaintiff's submissions to the court on January 17, 2012 and February 16, 2012, plaintiff, represented by his current counsel, objected to defendant's motion to remand plaintiff's case to the ABCMR. After a conference with the parties on February 23, 2012, the court granted defendant's motion to remand the case to the ABCMR "on the issues of the propriety of plaintiff's discharge and his disability status." The Order explained that "defendant has represented that the Board can address both the disability and improper discharge issues raised by the plaintiff and should do so at the same time for efficiency purposes." The court directed the ABCMR to:
The court retained jurisdiction over the above-captioned case while the matter was on remand at the ABCMR.
The ABCMR issued a decision regarding plaintiff's remand on October 18, 2012, concluding that plaintiff had failed to demonstrate the existence of a probable error or injustice, and, "[t]herefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned." Considering the specific issues raised, the ABCMR decided that:
The ABCMR concluded: "It appears the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case."
Following the ABCMR's decision on remand, on November 5, 2012, the court held a status conference to discuss the future of the above-captioned case. Subsequently, on February 19, 2013, the government filed another motion to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. The parties also cross-moved for judgment on the administrative record.
On September 16, 2014, however, plaintiff filed a motion to remand Mr. Small's case to the ABCMR for a second time. In the motion to remand, plaintiff explained that on September 3, 2014, the Secretary of Defense had issued instructions to the Boards of Correction of Military and Naval Records, which "compel the Board to consider the impact of the PTSD on the serviceman's behavior which rendered him eligible for a discharge under less than honorable conditions."
In plaintiff's request to the ABCMR for reconsideration of his case, plaintiff argued that "the time is ripe for this Board to consider whether his PTSD resulted in his misconduct." Plaintiff cited to the Secretary of Defense's September 3, 2014 Directive that instructed the ABCMR to consider PTSD or PTSD-related conditions as potential mitigating factors when reviewing a servicemember's misconduct that led to a Under Other Than Honorable Conditions characterization of service. According to plaintiff, "[t]o follow the directives of the Secretary of Defense, this Board must consider whether his PTSD, TBI, sleep disorders and all the drugs he [Mr. Small] was prescribed to combat his medical problems were factors working on his judgment." Plaintiff specifically requested that the ABCMR "find his TBI, PTSD and sleep disorder, combined to mitigate his behavior and upgrade his discharge classification to Honorable."
On January 22, 2015, the ABCMR considered plaintiff's request for reconsideration. In its reconsideration decision, the ABCMR explained that Mr. Small's case had been remanded by the court due to "initiatives of the Secretary of Defense issued on 3 September 2014, with instructions to the Boards of Correction of Military and Naval Records." The ABCMR explained:
Given the new September 3, 2014 instructions from the Secretary of Defense concerning PTSD, in its January 22, 2015 decision, the ABCMR explained that the court had "directed this Board to consider the impact of PTSD on the serviceman's behavior which rendered him eligible for a discharge under less than honorable conditions." According to the ABCMR, "[s]oldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service." The ABCMR stated that, "[i]n cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service."
With regard to plaintiff Small, the ABCMR stated that "[a] review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of deployment and war while serving in Kosovo, Iraq, and Afghanistan," and that he encountered instances in which "he and his unit were engaged in firefights," also "he experienced the loss of his Team Leader," and "he engaged with an Iraqi National who confessed to previously taking part in a firefight with the applicant's unit." The ABCMR explained that, according to the "medical evidence" presented, subsequent to those experiences in Kosovo, Iraq, and Afghanistan, "the applicant [Small] was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional" while he was in the military. The ABCMR explained further that "[c]onditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge." Because plaintiff was diagnosed with PTSD before his discharge, the ABCMR determined that, "it is reasonable to believe the applicant's PTSD condition existed at the time of discharge on 25 February 2011." As a result, the ABCMR concluded that "PTSD conditions most likely contributed to the misconduct that led to" plaintiff Small's discharge. The ABCMR decided that
The ABCMR, therefore, determined that the evidence presented during plaintiff Small's reconsideration was sufficient to justify a recommendation for partial relief and recommended that his discharge be upgraded to "General, Under Honorable Conditions." The ABCMR recommended "that all Department of the Army records of the individual concerned be corrected to show that he was discharged on 25 February 2011 with a characterization of service of `General, Under Honorable Conditions' and his rank/grade as SGT/E-5 with a date of rank and effective date of 7 January 2010." The ACBMR also determined, however, that the evidence presented was insufficient to justify a recommendation to upgrade plaintiff Small's characterization of service to "honorable."
After receiving the January 22, 2015 ACBMR decision concerning plaintiff's request for reconsideration of his case, on February 20, 2015, plaintiff filed an amended complaint in the above-captioned case, and defendant filed a partial motion to dismiss and a motion for judgment on the administrative record. Plaintiff subsequently filed a cross-motion for judgment on the administrative record. In plaintiff's motion for judgment on the administrative record, he indicated that "the ABCMR upgraded Plaintiff's discharge and found no error in the discharge proceeding." Plaintiff also stated that "the U.S. Army issued an honorable condition general discharge on March 10, 2015." Plaintiff recognized that he was "bound by the ruling of the ABCMR," and, as a result of the ABCMR decision, "this litigation is ended." Plaintiff, through his attorney, argued that this "court should end this case with a ruling that adopts the findings and conclusions of the ABCMR." Plaintiff argued that this court should "enter a judgment on the administrative record and find that the Plaintiff is entitled to the upgraded discharge category, but not to any other relief sought in the Complaint, Amended Complaint or any motion filed to date." In response, defendant argued that by requesting that the court grant judgment on the administrative record affirming the January 22, 2015 ABCMR decision, but not granting any other relief sought in plaintiff's complaint, plaintiff has abandoned the claims in plaintiff's complaint. Defendant argued that "Mr. Small's request appears to be nothing more than a veiled effort to support a future claim for attorney's fees pursuant to the Equal Access to Justice Act," and requested that the court grant defendant's motion for judgment on the administrative record and dismiss plaintiff's case. Shortly thereafter, plaintiff submitted a notice to the court stating "that the ABCMR has answered the issues raised by the pleadings and, therefore, the issues raised in Plaintiff's complaint are resolved." On June 3, 2015, the court issued an Order dismissing plaintiff's case and entering judgment "for plaintiff in accordance with the terms" of the ABCMR's January 22, 2015 decision.
Plaintiff timely filed an EAJA motion in the above-captioned case seeking to recover approximately $82,750.00 in attorney's fees and $350.00 in costs. Plaintiff argues that he is entitled to recover attorney's fees because he is a prevailing party and because the "position of the United States throughout this litigation was not substantially justified." In response, defendant argues that plaintiff may not recover attorney's fees and costs because "Mr. Small is not a prevailing party" and because "the Government's conduct both prior to and during litigation was substantially justified, because the Government took reasonable positions." Thereafter, the court heard oral arguments on plaintiff's motion for attorney's fees and costs.
"In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney's fee from the loser."
As indicated by the United States Supreme Court, "Congress enacted EAJA, Pub. L. 96-481, Tit. II, 94 Stat. 2325, in 1980 `to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.'"
H.R. Rep. No. 96-1418, at 9,
To address these concerns, in 1980, Congress enacted EAJA. "The Equal Access to Justice Act (EAJA or Act) departs from the general rule that each party to a lawsuit pays his or her own legal fees."
In order to accomplish its purpose, EAJA made two primary changes in the then prevailing law.
28 U.S.C. § 2412(b). Prior to EAJA, many different statutes contained specific waivers of sovereign immunity for the United States with regard to recovering attorney's fees.
EAJA provides that, "unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs . . . to the prevailing party in any civil action brought by or against the United States." 28 U.S.C. § 2412(b). Reasonable fees and expenses shall be awarded to the prevailing party "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).
28 U.S.C. § 2412(d)(2)(A).
As indicated by the United States Court of Appeals for the Federal Circuit, "EAJA is a fee-shifting statute that allows a party who prevails in a civil action brought by or against the government to recover attorney's fees and costs."
The court has considerable discretion to determine what level of attorneys' fees are reasonable and the amount of hours that should be compensated.
As the United States Supreme Court indicated:
Under EAJA, eligibility for an award of attorneys' fees and expenses in a civil action requires: (1) that an eligible claimant be a prevailing party; (2) that the government's position viewed over the entire course of the dispute was not substantially justified; (3) that no special circumstances make an award unjust; and (4) that any fee application be timely submitted and supported by an itemized statement.
The United States Supreme Court has stated that, "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."
The United States Supreme Court and the United States Court of Appeals for the Federal Circuit have described a spectrum for distinguishing "prevailing parties" from parties who are not entitled to an award of attorney's fees.
When a federal court is tasked with reviewing the actions of an administrative agency, securing a court remand to an agency may be sufficient to confer prevailing party status, however, not every such remand constitutes a grant of relief on the merits so as to confer prevailing party status.
The Federal Circuit has explained that "[i]n a variety of contexts, we have specifically held that a remand does not confer prevailing party status where the remand is not predicated on an administrative error."
There are several circumstances in which a federal court may issue a remand to an agency that is not based on an agency error, and, thus, not sufficient to confer prevailing party status.
In the above-captioned case, to recover his attorney's fees and reasonable expenses under EAJA, plaintiff must establish that he is a prevailing party.
The parties are not in agreement as to whether plaintiff qualifies as a prevailing party or the nature of the court's October 1, 2014 Order to remand the case a second time. Specifically, the parties disagree as to the reason for the remand. Contrary to plaintiff, defendant maintains that the October 1, 2014 remand was "based on a new policy directive from the DOD, not based on an allegation of administrative error." Defendant further points out that there was no concession or finding by the Army of an agency error prior to the second remand ordered by the court on October 1, 2014. Defendant also points out that, in plaintiff's motion for remand in 2014, plaintiff did not allege administrative error. Instead, defendant states that plaintiff requested that the court remand his case to the ABCMR after the Secretary of Defense issued a new Directive on PTSD.
On September 16, 2014, while the parties' cross-motions for judgment on the administrative record were pending before this court, plaintiff submitted a motion to remand his case to the ABCMR "with instructions to apply the standards set forth" in the September 3, 2014 Directive of the Secretary of Defense. Plaintiff's motion to remand stated:
Plaintiff's September 16, 2014 motion for remand did not allege agency error. Also, in plaintiff's proposed judgment, filed on June 2, 2015, after the ABCMR had issued its decision, plaintiff also stated that "the Plaintiff moved to remand the case to the ABCMR on grounds that the Secretary of Defense had given new direction to the Corrections Board for the Military Services when evaluating cases dealing with Post Traumatic Stress Disorder."
Defendant did not oppose giving plaintiff the opportunity to petition the ABCMR in light of the new Directive. Therefore, on October 1, 2014, the court granted plaintiff's motion for remand, and directed that "[p]laintiff may petition the Board of Corrections of Military Records
On January 22, 2015, the ABCMR considered plaintiff's request for reconsideration, and, in its decision, explained that Mr. Small's case had been remanded by the court due to "initiatives of the Secretary of Defense issued on 3 September 2014, with instructions to the Boards of Correction of Military and Naval Records." Given the new, September 3, 2014 Directive from the Secretary of Defense concerning PTSD, in its January 22, 2015 decision, the ABCMR explained that this court had "directed this Board to consider the impact of PTSD on the serviceman's behavior which rendered him eligible for a discharge under less than honorable conditions." According to the ABCMR, "[s]oldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service."
The ABCMR explained that, according to the "medical evidence" presented, subsequent to those experiences in Kosovo, Iraq, and Afghanistan, "the applicant [Small] was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional" while he was in the military. The ABCMR explained that "[c]onditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge." Because plaintiff was diagnosed with PTSD before his discharge, the ABCMR determined that, "it is reasonable to believe the applicant's PTSD condition existed at the time of discharge on 25 February 2011." As a result, the ABCMR concluded that, "PTSD conditions most likely contributed to the misconduct that led to" plaintiff Small's discharge. The ABCMR decided that "[a]fter carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions and restoring his rank/grade to SGT/E-5 with a date of rank and effective date of 7 January 2010." Thus, in light of the new Department of Defense Directive, the ABCMR determined that the evidence presented during plaintiff Small's reconsideration was sufficient to justify a recommendation for partial relief regarding the requests plaintiff had brought to the ABCMR. The ACBMR also determined, however, that the evidence presented was insufficient to justify a recommendation to upgrade plaintiff Small's characterization of service to "honorable."
Although to support his position plaintiff's counsel points to the outcome of Mr. Small's case at the ABCMR, which resulted from this court's October 1, 2014 Remand Order, this court's analysis also depends on the reason for this court's October 1, 2014 Order. As explained above, in order for plaintiff to succeed on his assertion that he is a prevailing party under EAJA, this court's remand to the ABCMR on October 1, 2014 must have been based on a finding of "administrative error."
The record before this court does not support plaintiff's allegation that the October 1, 2014 Order was based on "agency error," despite plaintiff's repeated attempts to so argue. In fact, plaintiff does not point to any finding by the court that an agency error occurred, or was the motivation for the court to issue the October 1, 2014 Order. Nor could plaintiff do so because the court did not make a finding of error during the course of the above-captioned case. Notwithstanding plaintiff's attempt in its motion for attorney's fees and expenses to re-characterize the basis for its September 16, 2014 motion for remand, the record demonstrates that the basis for the remand was the Secretary of Defense's new Directive, and the court remanded Mr. Small's case to the ABCMR to see if plaintiff was entitled to relief under the new Secretary of Defense's September 2014 Directive. The Directive also did not concede errors on the part of the Department of Defense, nor, on remand, did the ABCMR find that an agency error had occurred. Instead the Directive indicated a change in policy aimed at helping a subset of former soldiers.
The October 1, 2014 Order was not based on the necessary type of judicial finding on the merits of plaintiff's case to confer prevailing party status on plaintiff. In fact, because plaintiff moved to remand his case to the ABCMR before the court could rule on the merits of plaintiff's claim, there was no occasion for the court to determine whether an agency error had occurred. The United States Court of Appeals for the Federal Circuit has considered whether a party can be considered as "prevailing" when a remand order occurred without a finding by the court of agency error. In
Although the Federal Circuit has not previously held that a remand due to the passage of a new agency policy or directive is a procedural remand, as noted above, the Federal Circuit has held that "a remand to an administrative agency to consider the effects of legislation enacted while the case was on appeal does not constitute securing relief on the merits."
Furthermore, although plaintiff's motion for attorney's fees and expenses relies only on the October 1, 2014 Remand Order and plaintiff does not contend that he is a prevailing party based on the court's Order on June 3, 2015, which dismissed the case and entered judgment for plaintiff in accordance with the terms of the ABCMR decision, even if plaintiff had tried to rely on the June 3, 2015 Order to argue that he is a prevailing party, that Order lacked the judicial imprimatur necessary to establish plaintiff's position as a prevailing party. As the Federal Circuit has held on numerous occasions, there must be some judicial action on the merits of a case in order for there to be the necessary judicial imprimatur to change the legal relationship between the parties.
For the reasons stated above, plaintiff's application to recover his attorney's fees and costs is
(internal citations omitted). She continued:
The court reviewed the ABCMR's August 9, 2016 decision, which found that the "preponderance of evidence indicates that [Mr. Small] met criteria for PTSD and that his condition did not meet medical retention standards at the time of his discharge on 25 February 2011." Based on this finding, the ABCMR recommended that "all Department of the Army records of [Mr. Small] be corrected by affording him processing through the Integrated Disability Evaluation System (IDES) to determine if he should have been discharged or retired by reason of physical disability." The ABCMR explained that, depending on the outcome of the Integrated Disability Evaluation System process, Mr. Small's administrative discharge from the Army may be changed. The August 2016 ABCMR decision does not determine that an error was made by the agency, rather it states that, given the information in plaintiff's file, "it is understandable that the applicant's separation proceedings do not contain a decision from the GCMCA as to the disposition of his case through medical channels as required by regulation." Although the January 22, 2015 ABCMR had found that plaintiff's "separation processing was in accordance with applicable regulatory guidance," the August 2016 ABCMR found that, "in the interest of
To the extent plaintiff argues that the findings set forth in the August 2016 ABCMR decision support plaintiff's position that the government's actions were not substantially justified, that argument is not persuasive. Any relief that plaintiff obtained from the recent August 9, 2016 ABCMR decision was outside the litigation in this court and was described by the ABCMR as an equitable decision. Plaintiff's counsel in the litigation before this court, Mr. Sarda, did not do any legal work, expend any effort, or contribute to Mr. Small's February 2015 application to the ABCMR, which resulted in the August 9, 2016 decision. Therefore, plaintiff's counsel is not entitled to EAJA fees related to that proceeding. Moreover, because defendant was unaware of the ongoing ABCMR action that plaintiff had independently initiated in February 2015, the government did not have the opportunity to question or oppose plaintiff's submissions to the ABCMR. Therefore, the issue of whether or not plaintiff and his counsel are entitled to EAJA fees in the above-captioned case is not impacted by the