Small v. United States

In the United States Court of Federal Claims

No. 11-273C

Filed: November 22, 2016

Issued for Publication: January 9, 2017 1

* * * * * * * * * * * * *

DEXTER SMALL, *

*

Plaintiff, *

v. *

* Equal Access to Justice Act,

UNITED STATES, * 28 U.S.C. § 2412; Attorney’s

* Fees and Reasonable

Defendant. * Expenses.

* * * * * * * * * * * * * *

Peter J. Sarda, Creech Law Firm, P.A., Raleigh, NC, for plaintiff.

Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With her were

Kenneth D. Woodrow, Senior Trial Attorney, Commercial Litigation Branch, Civil

Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United

States Department of Justice, Washington, D.C. Of counsel was Major Angela D.

Swilley, Military Personnel Litigation Branch, United States Army Litigation Division.

OPINION

HORN, J.

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

1This opinion was issued under seal on November 22, 2016. The court afforded the

parties an opportunity to propose redactions in the published opinion and the parties did

not seek any redactions. The opinion is issued in full below.

litigation of this case. 2

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. 3

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

2 Plaintiff’s submissions seeking to recover attorney’s fees and expenses are inconsistent

with regard to the sought after sum. In plaintiff’s June 22, 2015 application for legal fees,

plaintiff seeks $82,725.00 in attorney’s fees and $350.00 in expenses. In plaintiff’s reply

to defendant’s opposition to plaintiff’s application for legal fees and expenses, plaintiff

argues that he “should be allowed his request for $82,750 in attorney’s fees and $350.00

in costs.”

3 According to The Diagnostic and Statistical Manual of Mental Disorder of the American

Psychiatric Association 424 (4th ed.), “[t]he essential feature of Posttraumatic Stress

Disorder is the development of characteristic symptoms following exposure to an extreme

traumatic stressor involving direct personal experience of an event that involves actual or

threatened death or serious injury, or other threat to one’s physical integrity. . . . The

characteristic symptoms resulting from the exposure to the extreme trauma include

persistent re-experiencing of the traumatic event . . . , persistent avoidance of stimuli

associated with the trauma . . . and persistent symptoms of increased arousal.”

2

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. 4

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. 5

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

4A Military Occupational Specialty/Medical Retention Board (MMRB) is an “administrative

screening board” that evaluates whether soldiers with a permanent physical profile of 3

or 4 have the “physical ability to perform their duties in a worldwide field or austere

environment.” Army Reg. 600-60 paragraph 2-1 (Feb. 28, 2008).

5Subsequently, plaintiff was seen by Dr. Krolick on May 6, 2010, June 17, 2010, October

7, 2010 and January 27, 2011.

3

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:

[t]he Soldier’s case will be forwarded to a Physical Evaluation Board (PEB)

regardless of the MEB findings and recommendations, so long as the

Soldier retains a P3 profile. . . . If the Soldier’s profile is downgraded to P2

and the Soldier meets medical retention standards, the Soldier will be

returned to duty and this headquarters notified.

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. 6 On March 16, 2010, plaintiff was evaluated by an Army psychiatrist, Dr.

Rosse, during a Medical Evaluation Board Specialty Care Consult. In the narrative

summary drafted by Dr. Rosse, Dr. Rosse indicated that plaintiff had major depressive

disorder, PTSD, and traumatic brain injury. Specifically, in his diagnosis, Dr. Rosse stated

6As explained by Tracye Baldwin, Chief of Patient Affairs Branch, Womack Army Medical

Center, in her December 19, 2011 affidavit:

During a “pre-MEB,” Soldiers meet with several possible specialty clinics

and specialists who render their medical assessments. After receiving the

assessments of all pertinent specialists, the Military Treatment Facility

(MTF) commander conducts a medical examination of the Soldier referred

for evaluation. Then, if it appears the soldier is not medically qualified to

perform duty, the MTF commander will refer the soldier to a MEB. It is upon

referral to a MEB that a Soldier’s name is entered and tracked in the

MEBITT database.

(internal citations omitted). She continued:

A diligent search of the MEBITT [Medical Evaluation Board Internal

Tracking Tool] database reveals no entry for Mr. Dexter Small.

Consequently, he did not undergo a MEB at Womack Army Medical Center

during the timeframe 1998 until present.

4

that plaintiff’s “subjective history would meet criteria for a Major Depressive Disorder,

. . . and would meet criteria for Posttraumatic Stress Disorder. . . .” Dr. Rosse noted that

“[t]here is association between his deficits and the stressors of a combat environment.”

Based on his evaluation of plaintiff, Dr. Rosse concluded that “[t]he Soldier’s

psychological conditions are medically disqualifying in accordance with AR 40-501.”

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:

The reasons for my proposed action are that you have been derelict in the

performance of your duties on 4 separate occasions; you have made 8 false

official statements; you have disobeyed lawful orders from a Non-

Commissioned officers [sic] 10 times; you disobeyed a direct order from a

Commissioned officer 33 times; you failed to be at your appointment place

of duty on 20 different occasions; you assaulted someone with a deadly

weapon; you have failed to pay your just debts 8 different times, you

committed a larceny of a value over $500; and you filed a false and

fraudulent claim against the United States.

Captain Smith recommended that plaintiff receive an Other than Honorable

characterization of service discharge. After plaintiff received the memorandum regarding

5

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:

[w]hile SGT Small’s actions while assigned to Warrior Transition Battalion

(WTB) were wrong, and are his responsibility, disposition through medical

channels is most appropriate for SGT Small.

...

Paragraph 1-33 of AR 635-200 establishes a strong preference for

disposition through medical channels.

...

Paragraph 1-33 of AR 635-200 requires that when a Soldier “does not meet

the medical fitness standards for retention (see AR 40-501, chap 3), he/she

will refer the Soldier to a Medical Evaluation Board (MEB) in accordance

with AR 40-400. The administrative separation proceedings will continue,

but final action by the separation authority will not be taken, pending the

results of MEB.” SGT Small does not meet the medical fitness standards

for retention. Nevertheless, his Medical Evaluation Board (MEB) has been

stopped numerous times and has yet to be completed.

...

Because the circumstances of SGT Small’s case warrant disability

processing. . . SGT Small’s separation should be processed through

medical channels.

(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

6

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 Under Other Than Honorable Conditions, discharge.” (emphasis

in original). As a result of Major General Anderson’s decision, plaintiff Small was

“immediately” “reduced to the rank of PVT (E-1).” Major General Anderson ordered that

plaintiff Small should be “expeditiously processed for separation” within five working days

of Major General Anderson’s approval decision. Thereafter, plaintiff was discharged from

the Army on February 25, 2011.

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) 7 Chapter 14, Section III, paragraph 14-12c, for commission of a serious offense,

should have been “processed as a medical discharge through the usual and customary

procedure utilized for soldiers not qualified for worldwide duties.” Plaintiff sought a

declaration from the court voiding his discharge classification Under Other Than

Honorable Conditions, reinstating him to active duty in order to complete his medical

evaluations, and ordering a “Medical Review Board to be conducted” to consider plaintiff

for a disability discharge. Plaintiff also sought an award of back pay and allowances from

February 22, 2011 to August 16, 2011.

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

7Army Reg. 635-200 is still in effect as of November 21, 2016, despite a “Rapid Action

Revision,” dated September 6, 2011, on unrelated issues.

7

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:

address, among other issues, whether a Medical Evaluation Board (MEB)

should have been conducted before Mr. Small was discharged from the

Army; the Army’s compliance with AR 635-200, para. 1-33 and AR 635-40,

para. 4-9; the implications and remedies of no MEB having been conducted;

the basis for the referral of Mr. Small to the March 16, 2011 interview with

Dr. Mark Rosse; whether and how Dr. Rosse’s medical conclusions were

documented in plaintiff’s personnel file and whether and how Dr. Rosse’s

medical conclusions were transmitted to other Army personnel; the impact

of Dr. Rosse’s conclusions on the medical evaluation process; what

happened after Dr. Rosse’s interview; what should have happened after Dr.

Rosse’s interview; and if requested and, as appropriate, a Board review of

any plaintiff disability claims.

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 available records indicate the applicant’s administrative separation

board was accomplished in compliance with applicable regulations with no

violations or procedural errors which would have jeopardized his rights. AR

635-200 at paragraph 1-33b provides that when the “MTF commander” or

“attending medical officer” determines that when a Soldier is being

processed for administrative separation under chapter 14 does not meet the

medical fitness standards for retention, he or she will refer the Soldier to an

MEB. This portion of AR 635-200 limits the authority to determine whether

a Soldier does not meet medical retention standards to the MTF

commander or an “attending medical officer.”

...

The totality of the evidence, including the medical record most proximate to

8

the applicant’s discharge, overwhelmingly supports the conclusion that the

applicant, upon his separation, met medical retention standards and did not

have a condition warranting an MEB or entry into the PDES [Physical

Disability Evaluation System].

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.” 8 Plaintiff asserted: “[b]ecause this directive would

affect the rights of Plaintiff herein, Plaintiff moves the Court to remand this case to the

Board of Corrections of Military Records with instructions to apply the standards set forth”

in the Directive of the Secretary of Defense. After a status conference with the parties, on

October 1, 2014 the court issued an order staying the above-captioned case to allow

8The September 3, 2014 Directive, titled “Supplemental Guidance to Military Boards for

Correction of Military/Naval Records Considering Discharge Upgrade Requests by

Veterans Claiming Post Traumatic Stress Disorder,” states:

Liberal consideration will be given in petitions for changes in

characterization of service to Service treatment record entries which

document one or more symptoms which meet the diagnostic criteria of Post-

Traumatic Stress Disorder (PTSD) or related conditions.

...

In cases where Service records or any document from the period of service

substantiate the existence of one or more symptoms of what is now

recognized as PTSD or a PTSD-related condition during the time of service,

liberal consideration will be given to finding that PTSD existed at the time of

service.

...

In 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

under other than honorable conditions characterization of service.

9

plaintiff to “petition the Board of Corrections of Military Records based on the Secretary

of Defense’s September 3, 2014 instructions.” Thereafter, plaintiff filed a request for

reconsideration of his case with the ABCMR.

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:

on 3 September 2014 the Secretary of Defense directed the Service

Discharge Review Boards and Service Boards for Correction of

Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD

criteria, detailed medical considerations and mitigating factors when taking

action on applications from former service members administratively

discharged UOTHC and who have been diagnosed with PTSD by a

competent mental health professional representing a civilian healthcare

provider in order to determine if it would be appropriate to upgrade the

characterization of the applicant’s service.

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

10

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

[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.

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

11

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.

DISCUSSION

“In the United States, the prevailing litigant is ordinarily not entitled to collect a

reasonable attorney’s fee from the loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240, 247 (1975); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t

of Health & Human Res., 532 U.S. 598, 602 (2001); Arcambel v. Wiseman, 3 U.S. (Dall.)

306 (1796); Ward v. United States Postal Serv., 672 F.3d 1294, 1297 (Fed. Cir. 2012);

Nilssen v. Osfam Sylvania, Inc., 528 F.3d 1352, 1357 (Fed. Cir.), reh’g en banc denied

(Fed. Cir. 2008). “Absent statute or enforceable contract, litigants pay their own attorney’s

fees.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. at 257 (citations omitted).

This has come to be known as the “American Rule,” and the only exceptions to this rule

are those created by Congress and a small group of common law equitable exceptions

which federal courts lack the power to enlarge. 9 See id. at 269; see also Nilssen v. Osfam

Sylvania, Inc., 528 F.3d at 1357; Centex Corp. v. United States, 486 F.3d 1369, 1372

(Fed. Cir. 2007). In addition, litigants seeking to recoup litigation expenses from the

United States also face the barrier of overcoming sovereign immunity. See Chiu v. United

States, 948 F.2d 711, 714 (Fed. Cir. 1991); Gavette v. Office of Pers. Mgmt., 808 F.2d

1456, 1460 (Fed. Cir. 1986); Griffin & Dickson v. United States, 21 Cl. Ct. 1, 4 (1990).

Only a statutory directive waiving immunity can make the United States potentially liable

in suit. See Lane v. Pena, 518 U.S. 187, 192 (1996); United States v. Testan, 424 U.S.

392, 399 (1976); Soriano v. United States, 352 U.S. 270, 276 (1957); see also Hymas v.

9 The Supreme Court in Alyeska noted the equitable exceptions of (1) willful disobedience

of a court order, (2) bad faith on the part of a losing party, and (3) the common fund or

common benefit exception allowing recovery of costs when the prevailing party is a

trustee of property or is a party preserving or recovering a fund for the benefit of others in

addition to himself. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. at 257-59.

12

United States, 810 F.3d 1312, 1817 (Fed. Cir. 2016).

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.’” Scarborough

v. Principi, 541 U.S. 401, 406 (2004) (quoting H.R. Rep. No. 96-1005, at 9 (1980)); see

also Gavette v. Office of Pers. Mgmt., 808 F.2d at 1459 (quoting H.R. Rep. No. 96-1418,

at 5 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4984 (1980)) (Congress recognized

that the American Rule deterred individuals and small businesses “from seeking review

of, or defending against unreasonable governmental action because of the expense

involved in securing the vindication of their rights”); Hyperion, Inc., v. United States, 118

Fed. Cl. 540, 544 (2014); PCI/RCI v. United States, 37 Fed. Cl. 785, 788 (1997) (also

quoting from H.R. Rep. No. 96-1418, at 5, reprinted in 1980 U.S.C.C.A.N. at 4984). When

the House of Representatives considered EAJA, it provided the following rationale:

For many citizens, the costs of securing vindication of their rights and the

inability to recover attorney fees preclude resort to the adjudicatory process.

When the cost of contesting a Government order, for example, exceeds the

amount at stake, a party has no realistic choice and no effective remedy. In

these cases, it is more practical to endure an injustice than to contest it.

H.R. Rep. No. 96-1418, at 9, reprinted in 1980 U.S.C.C.A.N. at 4988.

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.” Scarborough v. Principi, 541 U.S. at 404-05 (citing

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. at 257). The purpose of EAJA

was to “‘reduce the deterrents and disparity by entitling certain prevailing parties to

recover an award of attorney’s fees, expert witness fees and other expenses against the

United States.’” Gavette v. Office of Pers. Mgmt., 808 F.2d at 1459-60 (quoting H.R. Rep.

No. 96-1418, at 6, reprinted in 1980 U.S.C.C.A.N. at 4984); see also PCI/RCI v. United

States, 37 Fed. Cl. at 788. “The primary purpose of the EAJA is to ensure that litigants

‘will not be deterred from seeking review of, or defending against, unjustified

governmental action because of the expense involved.’” Wagner v. Shinseki, 640 F.3d

1255, 1259 (Fed. Cir. 2011) (quoting Scarborough v. Principi, 541 U.S. at 407) (citations

and internal quotation marks omitted in original); see also Thompson v. Shinseki, 682

F.3d 1377, 1380 (Fed. Cir. 2012); Phillips v. Shinseki, 581 F.3d 1358, 1367 (Fed. Cir.

2009); Ellis v. United States, 711 F.2d 1571, 1576 (Fed. Cir. 1983) (“EAJA’s primary

purpose is to eliminate legal expense as a barrier to challenges of unreasonable

government action.”); Hubbard v. United States, 80 Fed. Cl. 282, 285 (2008), aff’d, 315

F. App’x 307 (Fed. Cir. 2009).

In order to accomplish its purpose, EAJA made two primary changes in the then

prevailing law. Gavette v. Office of Pers. Mgmt., 808 F.2d at 1460 (citing H.R. Rep. No.

96-1418, at 9, 1980 U.S.C.C.A.N. at 4987). First, in 28 U.S.C. § 2412(b), EAJA extended

the existing common law and statutory exceptions to the American Rule to make the

13

United States liable for attorney's fees just as private parties would be liable. Gavette v.

Office of Pers. Mgmt., 808 F.2d at 1460 (citing H.R. Rep. No. 96-1418, at 9, 17, 1980

U.S.C.C.A.N. at 4987, 4996); see also Scarborough v. Principi, 541 U.S. at 406 (“First, §

2412(b) made the United States liable for attorney's fees and expenses “to the same

extent that any other party would be liable under the common law or under the terms of

any statute which specifically provides for such an award.”). The House Committee on

the Judiciary stated that:

Section 2412(b) permits a court in its discretion to award attorney’s fees and

other expenses to prevailing parties in civil litigation involving the United

States to the same extent it may award fees in cases involving other

parties. . . . Thus, under this subsection, cases involving the United States

would be subject to the “bad faith,” “common fund” and “common benefit”

exceptions to the American rule against fee-shifting. The United States

would also be liable under the same standards which govern awards

against other parties under Federal statutory exceptions, unless the statute

expressly provides otherwise.

Gavette v. Office of Pers. Mgmt., 808 F.2d at 1460 (citing H.R. Rep. No. 96-1418, at 17,

1980 U.S.C.C.A.N. at 4996); see, e.g., Centex Corp. v. United States, 486 F.3d at 1372;

St. Paul Fire & Marine Ins. Co. v. United States, 4 Cl. Ct. 762, 769 (1984) (bad faith

exception); Knight v. United States, 982 F.2d 1573, 1579-82 (Fed. Cir. 1993) (common

fund exception); Heger v. United States, 114 Fed. Cl. 204, 210-11 (2014) (bad faith

exception); MVM, Inc. v. United States, 47 Fed. Cl. 361, 363-65 (2000) (common benefit).

Section 2412(b) reads:

Unless expressly prohibited by statute, a court may award reasonable fees

and expenses of attorneys, in addition to the costs which may be awarded

pursuant to subsection (a), to the prevailing party in any civil action brought

by or against the United States or any agency or any official of the United

States acting in his or her official capacity in any court having jurisdiction.

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 or under

the terms of any statute which specifically provides for such an award.

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. See

Gavette v. Office of Pers. Mgmt., 808 F.2d at 1460. EAJA was enacted to provide a

“uniform rule” which would “make such specific exceptions unnecessary.” Id. (citing 28

U.S.C. § 2412 (Historical and Statutory Notes)).

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).

14

The EAJA statute also provides that,

“fees and other expenses” includes the reasonable expenses of expert

witnesses, the reasonable cost of any study, analysis, engineering report,

test, or project which is found by the court to be necessary for the

preparation of the party's case, and reasonable attorney fees (The amount

of fees awarded under this subsection shall be based upon prevailing

market rates for the kind and quality of the services furnished, except

that…(ii) attorney fees shall not be awarded in excess of $125 per hour

unless the court determines that an increase in the cost of living or a special

factor, such as the limited availability of qualified attorneys for the

proceedings involved, justifies a higher fee.).

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.” Davis v. Nicholson, 475

F.3d 1360, 1363 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007); see also

Ward v. United States Postal Serv., 672 F.3d at 1297. Because EAJA “exposes the

government to liability for attorney fees and expenses to which it would not otherwise be

subjected, it is a waiver of sovereign immunity.” Ed A. Wilson, Inc. v. Gen. Servs. Admin.,

126 F.3d 1406, 1408 (Fed. Cir. 1997) (citing Ardestani v. I.N.S., 502 U.S. 129, 137

(1991)); see also Massie v. United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000)

(explaining that EAJA is a waiver of sovereign immunity). “[T]he traditional principle [is]

that the Government's consent to be sued ‘must be “construed strictly in favor of the

sovereign”….’” United States v. Nordic Vill., 503 U.S. 30, 34 (1992) (quoting Ruckelshaus

v. Sierra Club, 463 U.S. 680, 685 (1983) (quoting McMahon v. United States, 342 U.S.

25, 27 (1951))); see also Ardestani v. I.N.S., 502 U.S. at 137.

The court has considerable discretion to determine what level of attorneys’ fees

are reasonable and the amount of hours that should be compensated. See Wagner v.

Shinseki, 640 F.3d at 1261 (explaining that “a court has broad discretion in awarding

attorney fees” and that a “litigant is only entitled to ‘reasonable’ attorney fees”); see also

Hubbard v. United States, 480 F.3d 1327, 1334-35 (Fed. Cir. 2007) (In an EAJA context,

“[t]he trial court has considerable discretion in determining reasonable attorney fees.”);

RAMCOR Servs., Grp., Inc. v. United States, 185 F.3d 1286, 1290 (Fed. Cir. 1999) (“The

trial judge enjoys considerable discretion to determine eligibility for an EAJA award.”);

Ulysses Inc. v. United States, 117 Fed. Cl. 772, 785 (2014) (“EAJA provides that the

Court, in its discretion, may reduce the amount to be awarded.”); Metric Constr. Co., Inc.

v. United States, 83 Fed. Cl. 446, 450 (2008). Moreover, the court should not award fees

“to the extent that the applicant ultimately fails to prove justification for each item of fee

claimed[.]” Fritz v. Principi, 264 F.3d 1372, 1377 n.1 (Fed. Cir. 2001).

As the United States Supreme Court indicated:

There is no precise rule or formula for making these determinations [for fee

15

awards]. The district court may attempt to identify specific hours that should

be eliminated, or it may simply reduce the award to account for the limited

success. The court necessarily has discretion in making this equitable

judgment.

Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983). Although in Hensley v. Eckerhart the

Supreme Court addressed attorneys’ fees available pursuant to the Civil Rights Attorney’s

Fees Awards Act of 1976, the Supreme Court subsequently indicated that similar

discretion by the trial court was warranted in an EAJA examination. See Comm’r v. Jean,

496 U.S. 154, 161 (1990) (“In Hensley, we emphasized that it is appropriate to allow the

district court discretion to determine the amount of a fee award, given its ‘superior

understanding of the litigation and the desirability of avoiding frequent appellate review of

what essentially are factual matters.’ The EAJA prescribes a similar flexibility.”) (quoting

Hensley v. Eckerhart, 461 U.S. at 437). The United States Court of Appeals for the

Federal Circuit also has applied the Hensley approach in EAJA cases. See Hubbard v.

United States, 480 F.3d at 1332-33; see also Former Emps. of Motorola Ceramic Prods.

v. United States, 336 F.3d 1360, 1364 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.

Cir. 2003); Prochazka v. United States, 116 Fed. Cl. 444, 458 (2014) (explaining that the

Federal Circuit has held that the Hensley standard is to be used in determining the amount

of fees awarded under EAJA); Info. Scis. Corp. v. United States, 88 Fed. Cl. 626, 633 n.3

(2009) (explaining that Hensley has been applied by the Federal Circuit in EAJA cases).

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. See 28 U.S.C.

§ 2412(d)(1)(A),(B); see also Scarborough v. Principi, 541 U.S. at 407-08; Comm’r v.

Jean, 496 U.S. at 160-61; Norris v. Sec. & Exch. Comm’n, 695 F.3d 1261, 1264 (Fed. Cir.

2012); Ward v. United States Postal Serv., 672 F.3d at 1297; Libas, Ltd. v. United States,

314 F.3d 1362, 1365 (Fed. Cir. 2003).

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.” Hensley

v. Eckerhart, 461 U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st

Cir. 1978)) (standard is generally applicable in cases for which Congress authorizes an

award of fees to a “prevailing party”); see also Dover v. McDonald, 818 F.3d 1316, 1318

(Fed. Cir. 2016) (explaining that the correct legal standard for determining whether a party

is a prevailing party is that the party must receive some relief on the merits of his claim);

Ward v. United States Postal Serv., 672 F.3d at 1297; Brewer v. Am. Battle Monuments

Comm'n, 814 F.2d 1564, 1567-69 (Fed. Cir. 1987). According to the Supreme Court, “the

term ‘prevailing party’ in fee statutes is a ‘term of art’ that refers to the prevailing litigant.”

Astrue v. Ratliff, 560 U.S. 586, 591 (2010); see also Buckhannon Bd. & Care Home, Inc.

v. W. Va. Dep’t of Health & Human Res., 532 U.S. at 603. The Federal Circuit has

indicated in an EAJA analysis that “[a] party prevails in a civil action if he receives ‘“at

least some relief on the merits of his claim.”’” Davis v. Nicholson, 475 F.3d at 1363

16

(quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

532 U.S. at 603-04 (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987))); see also Dover

v. McDonald, 818 F.3d at 1318. The Supreme Court has indicated that “relief on the

merits” requires a “material alteration of the legal relationship of the parties.” Buckhannon

Bd. & Care Homes, Inc v. W. Va. Dep’t of Health & Human Res., 532 U.S at 604-05; see

also Davis v. Nicholson, 475 F.3d at 1363; Rice Servs., Ltd. v. United States, 405 F.3d

1017, 1023 (Fed. Cir. 2005) (“Furthermore, the [Supreme] Court indicated that ‘relief on

the merits’ at least required that the party obtain a court order materially changing the

legal relationship of the parties.”); Halpern v. Principi, 384 F.3d 1297, 1306 (Fed. Cir.),

reh’g denied (Fed. Cir. 2004). The United States Supreme Court further has held that the

material alteration of the legal relationship of the parties must come from “the necessary

judicial imprimatur on the change.” Buckhannon Bd. & Care Homes, Inc v. W. Va. Dep’t

of Health & Human Res., 532 U.S at 604-05 (emphasis in original). When the court

dismisses a complaint without reaching the merits, there is no judicial imprimatur. See

Hughett v. United States, 110 Fed. Cl. 680, 687 (2013).

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. Davis v. Nicholson, 475 F.3d

at 1363 (citing Buckhannon Bd. & Care Homes, Inc v. W. Va. Dep’t of Health & Human

Res., 532 U.S at 604). “At one end of the spectrum, enforceable judgments on the merits,

even for nominal damages, and court-ordered consent decrees confer prevailing party

status.” Id.; see also Dover v. McDonald, 818 F.3d at 1318 (holding that “[t]raditional

examples of relief on the merits include judgments on the merits and consent decrees’’);

Rice Servs., Ltd. V. United States, 405 F.3d at 1023; Former Emps. of Motorola Ceramic

Prods. v. United States, 336 F.3d at 1364 (“Two examples of an alteration in the legal

relationship between the parties were an enforceable judgment on the merits and a court-

ordered consent decree.”). “At the other end of the spectrum, interlocutory rulings that

reverse dismissals for a failure to state a claim, reversals of directed verdicts for

defendants, and achievement of desired results because a lawsuit brought about a

voluntary change in the defendant’s conduct” do not confer prevailing party status. Davis

v. Nicholson, 475 F.3d at 1363 (quoting Buckhannon Bd. & Care Homes, Inc v. W. Va.

Dep’t of Health & Human Res., 532 U.S at 604); see also Vaughn v. Principi, 336 F.3d

1351, 1355 (Fed. Cir. 2003) (quoting Buckhannon Bd. & Care Homes, Inc v. W. Va. Dep’t

of Health & Human Res., 532 U.S at 604) (quoting Hewitt v. Helms, 482 U.S. at 760 and

citing Hanrahan v. Hampton, 446 U.S. 754, 754 (1980))). The Supreme Court has

explained that “[a] defendant’s voluntary change in conduct, although perhaps

accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary

judicial imprimatur on the change.” Buckhannon Bd. & Care Homes, Inc v. W. Va. Dep’t

of Health & Human Res., 532 U.S at 604-05 (emphasis in original). In Buckhannon, the

Supreme Court rejected the “catalyst theory” which interpreted the phrase “prevailing

party” as one who “achieved the desired result because the lawsuit brought about a

voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Homes, Inc v. W.

Va. Dep’t of Health & Human Res., 532 U.S. at 601, 606. The Supreme Court sought to

prevent awarding attorney’s fees “to a plaintiff who, by simply filing a nonfrivolous but

nonetheless potentially meritless lawsuit (it will never be determined), has reached the

‘sought-after destination’ without obtaining any judicial relief.” Buckhannon Bd. & Care

17

Homes, Inc v. W. Va. Dep’t of Health & Human Res., 532 U.S. at 606; see also Former

Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d at 1363-64; Vaughn v.

Principi, 336 F.3d at 1355.

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. See 28 U.S.C. § 2412(d)(1)(A); see also Dover v.

McDonald, 818 F.3d at 1316 (holding that “[a]n appeal of an agency decision ‘is treated

as a separate proceeding from the administrative proceeding, and a remand may

[therefore] constitute the securing of relief on the merits.’” (citing Motorola, 336 F.3d at

1365)); Davis v. Nicholson, 475 F.3d at 1363 (holding that “remands do not necessarily

provide any relief on the merits”); Kelly v. Nicholson, 463 F.3d 1349, 1354 (Fed. Cir. 2006)

(“Securing a remand to an agency can constitute the requisite success on the merits.”);

Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d at 1366). In general

terms, the Federal Circuit “ha[s] developed tests based on Supreme Court cases for

determining when court-to-administrative agency remands confer prevailing party status.”

Davis v. Nicholson, 475 F.3d at 1363 (citing Former Emps. of Motorola Ceramic Prods.

v. United States, 336 F.3d at 1366) (quoting Melkonyan v. Sullivan, 501 U.S. 89, 97

(1991)). According to the Federal Circuit,

where the plaintiff secures a remand requiring further agency proceedings

because of alleged error by the agency, the plaintiff qualifies as a prevailing

party (1) without regard to the outcome of the agency proceedings where

there has been no retention of jurisdiction by the court, or (2) when

successful in the remand proceedings where there has been a retention of

jurisdiction.

Davis v. Nicholson, 475 F.3d at 1363 (quoting Former Emps. of Motorola Ceramic Prods.

v. United States, 336 F.3d at 1366).

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.” Gurley v. Peake, 528 F.3d 1322, 1327 (Fed.

Cir. 2008). Indeed, “[a]s a general rule, if the court issuing the remand order does not

identify or acknowledge an error by the administrative agency, the remand is procedural

in nature and does not convey prevailing party status upon the claimant.” See Hughett v.

United States, 110 Fed. Cl. 680, 687 (2013).The Federal Circuit also has stated:

Where there has been a remand to an administrative agency without a

judicial finding of administrative error or a concession of such error by the

agency, the default rule is that the remand is not based on administrative

error for EAJA purposes under the Motorola test. This default rule places

the burden on the EAJA applicant to prove, based on the record, that the

remand had to have been predicated on administrative error even though

the remand order does not say so.

18

Davis v. Nicholson, 475 F.3d at 1366. Whether or not a remand was based on an agency

error is not limited to the four corners of the remand order. Gurley v. Peake, 528 F.3d at

1328; Davis v. Nicholson, 475 F.3d at 1365. Rather, to be considered a prevailing party,

the court must “conclude that the [r]emand [o]rder was either explicitly or implicitly

predicated on administrative error,” considering “the context of the remand.” Gurley v.

Peake, 528 F.3d at 1327-28; see, e.g., Davis v. Nicholson, 475 F.3d at 1365; Kelly v.

Nicholson, 463 F.3d at1354 n.3. The Federal Circuit has indicated that, if the remand

order does not explicitly state that the remand is predicated on administrative error by an

agency, then the evidentiary record should clearly indicate that the remand was based on

agency error, in order for a moving party to establish its status as a prevailing party. Davis

v. Nicholson, 475 F.3d at 1365 (“Because there is no judicial finding of agency error or

concession of agency error and because the record is not clear, we hold that [plaintiff]

failed to prove that the remand was based on administrative agency error” and, thus, “is

not a prevailing party for EAJA purposes.”); see also Hughett v. United States, 110 Fed.

Cl. at 684 (noting that there was no language in the court’s remand order indicating the

court’s position on the merits of plaintiff’s claims in finding that the court’s remand was

not based on agency error). It is plaintiff’s burden to show that the remand was of a type

that confers prevailing party status. See Hughett v. United States, 110 Fed. Cl. at 686.

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. See Ward v. U.S. Postal Serv., 672 F.3d at 1300 (explaining that

the Federal Circuit has “held that remands not rooted in agency error do not result in

prevailing party status”). For instance, a procedural remand does not convey prevailing

party status because it does not lead to any immediate judicial action on the merits. See

id.; see also Akers v. Nicholson, 409 F.3d 1356, 1360 (Fed. Cir. 2005) (explaining that a

joint request for a remand based on the possibility for settlement was not a remand based

on agency error and did not confer prevailing party status); Hughett v. United States, 110

Fed. Cl. at 687. A court order remanding a case to an agency so that the agency will

consider the effect of intervening legislation, or a change in the law, is not based on

administrative error and does not confer prevailing party status. See Thompson v.

Shinseki, 682 F.3d at 1382; see also Gurley v. Peake, 528 F.3d at 1327 (citing Vaughn

v. Principi, 336 F.3d at 1360); Davis v. Nicholson, 475 at 1364 (explaining that “remands

to consider the effects of intervening new law. . . do not qualify plaintiffs as prevailing

parties”); Akers v. Nicholson, 409 F.3d at 1360. Additionally, a remand to consider newly

discovered evidence will not confer prevailing party status. See Ward v. U.S. Postal Serv.,

672 F.3d at 1299-1300; Hughett v. United States, 110 Fed. Cl. at 686. A remand issued

only for the purpose of judicial economy, or for the purpose of conducting further legal

proceedings or clarifying facts, also will not confer prevailing party status. See Ward v.

U.S. Postal Serv., 672 F.3d at 1300 (citing Gurley v. Peake, 528 F.3d at 1324); Davis v.

Nicholson, 475 F.3d at 1364 (finding that the remand order was not based on agency

error and “merely afforded [plaintiff] an opportunity to litigate again”). “[R]emands that do

not address administrative error but which merely provide another opportunity for

adjudication are insufficient to convey prevailing party status on a plaintiff.” Hughett v.

United States, 110 Fed. Cl. at 688.

In the above-captioned case, to recover his attorney’s fees and reasonable

19

expenses under EAJA, plaintiff must establish that he is a prevailing party. See 28 U.S.C.

§ 2412(d)(1)(A),(B). Plaintiff argues that he is a prevailing party because the court’s

October 1, 2014 Order, which allowed plaintiff to petition the ABCMR, was a remand

based on agency error, and, on remand, plaintiff achieved some of the benefits that he

sought in his complaint. In plaintiff’s motion for attorney’s fees and reasonable expenses,

plaintiff argues that the October 1, 2014 Order was based on two errors that the Army

had committed, 10 and that “[t]he directive by the Secretary of Defense was simply used

to display the blatant errors committed by the agency.” 11

10 Plaintiff alleged that (1) the Army erred in not finding that “Army Regulation 40-501 was

violated when Mr. Small was not provided an MEB”; and (2) “the Army failed to find that

Army Regulation 635-200 was violated when the commander failed to determine that Mr.

Small’s PTSD was a substantial cause for his misbehavior.”

11 On September 16, 2016, the court learned for the first time from defendant that, in

February 2015, Mr. Small initiated another appeal to the ABCMR, independent from the

case filed in this court, which resulted in a decision from the ABCMR on August 9, 2016.

Apparently, Mr. Small pursued this separate action on his own, never notifying the court

of the action, despite the ongoing case in this court in which he was represented by

counsel. Mr. Small’s counsel in the above-captioned case, Mr. Peter Sarda, represented

to the court that “Counsel for the Plaintiff had no knowledge of the Plaintiff’s filing an

ABCMR in February, 2015, and did not consult with or support Plaintiff other than

submitting copies of pleadings to the Office of the Surgeon General per their request.”

Mr. Sarda also indicated that “no effort by counsel for Plaintiff was expended by counsel

for Plaintiff to further the Plaintiff’s ABCMR claim which resulted in the August 10 [sic],

2016 decision of the ABCMR.” Plaintiff’s attorney, however, argues that “the action and

findings of the [August 9, 2016] ABCMR clearly support the pleadings of the Plaintiff which

were originally filed in this court.” Plaintiff argues further that “the ABCMR findings show

the government was not substantially justified in its defense” against plaintiff’s claims.

Defendant takes the position that “the August 2016 ABCMR decision has no impact on

Mr. Small’s pending application for attorney’s fees” in the above-captioned case.

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

20

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 recently became aware of initiatives of the Secretary of Defense

issued on September 3, 2014, with instructions to the Boards of Correction

of Military and Naval Records. Those instructions 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.

Because this directive would affect the rights of Plaintiff herein, Plaintiff

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

equity, there is a basis for referring the applicant’s records to an MEB for review and, if

appropriate, subsequent referral to an informal PEB.” (emphasis added).

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 pro se, ABCMR case filed by Mr. Small.

21

moves the Court to remand this case to the Board of Corrections of Military

Records with instructions to apply the standards set forth in the attached

directive.

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 based on the Secretary of Defense’s September 3, 2014 instructions.”

(emphasis added). Thereafter, plaintiff petitioned the ABCMR to reconsider his case,

arguing that “the time is ripe for this Board to consider whether his PTSD resulted in his

misconduct.”

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

22

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.” See Ward v. U.S. Postal Serv.,

672 F.3d at 1300; see also Gurley v. Peake, 528 F.3d at 1327. In determining whether

the October 1, 2014 Remand Order 12 was based on “agency error,” this court examines

not only the 2014 Remand Order, but also the context in which the remand was granted.

Gurley v. Peake, 528 F.3d at 1327-28; see also Former Emps. of Motorola Ceramic

Prods. v. United States, 336 F.3d at 1366-67.

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 Akers v. Nicholson, which is

12 As to the 2012 remand issued by the court, the remand occurred at defendant’s

request, and, although it was opposed by plaintiff, it was granted by the court to promote

judicial efficiency. Moreover, following the 2012 remand, the ABCMR upheld plaintiff’s

discharge and the terms of the discharge, and denied plaintiff relief. The court, therefore,

does not consider the Remand Order issued in 2012 with respect to the current EAJA

application. The current EAJA dispute only relates to the October 1, 2014 Remand Order.

23

relevant to this court’s consideration of Mr. Small’s case, there was a remand for re-

adjudication after the passage of a new law. See Akers v. Nicholson, 409 F.3d at 1358.

Mr. Small’s case was remanded to the ABCMR for re-adjudication or reconsideration

following the issuance of a new Directive by the Secretary of Defense. In Akers v.

Nicholson, the Federal Circuit determined that, because the need for a remand in that

case was based on the enactment of new legislation and “neither resulted from nor led to

any immediate judicial action on the merits,” the remand “did not place a judicial

imprimatur on any decision concerning the merits” of that case, and, therefore, the plaintiff

was not a prevailing party. Id. at 1359-60. In Mr. Small’s case, this court stayed plaintiff’s

case following the issuance of the new, and potentially relevant, Directive issued by the

Secretary of Defense in order to allow plaintiff the opportunity to petition the ABCMR for

reconsideration of his case, given the policy instructions contained in the new Directive.

As in Akers v. Nicholson, in Mr. Small’s case, the court’s remand did not result from a

judicial action on the merits, nor did it lead to a judicial decision on the merits. The Federal

Circuit has explained that when there has been a remand to an administrative agency

without judicial action on the merits, including a finding of administrative error, “the default

rule is that the remand is not based on administrative error for EAJA purposes,” thus, a

remand not based on such a finding of agency error cannot confer prevailing party status.

Davis v. Nicholson, 475 F.3d at 1366.

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.” Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d at 1366.

Logically, if a remand following a change in the law is found to be a remand not based on

agency error and not based on a finding on the merits, then a remand based on a change

in an agency’s policy implemented by an agency Directive should lead to the same result.

In both circumstances, the remand allows for the re-adjudication as a result of a change

in the legal or policy landscape, as opposed to re-adjudication following a judicial finding

of agency error. Having examined plaintiff’s motion for remand, and the October 1, 2014

Remand Order, the court concludes that the October 1, 2014 remand did not result from

judicial action on the merits of the case, but, instead, was in response to the Directive of

the Secretary of Defense, which changed the way in which PTSD cases should be

reviewed. To the extent plaintiff alleges that he was a prevailing party because, on

remand, he achieved some of the benefits sought in his complaint, success on remand

does not confer prevailing party status if the court Order remanding the case to the agency

was due to a change in agency policy.

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

24

judicial imprimatur to change the legal relationship between the parties. See, e.g., Akers

v. Nicholson, 409 F.3d at 1359. The June 3, 2015 Order dismissed plaintiff’s case and

ordered judgment “for the plaintiff in accordance with the terms” of the January 22, 2015

ABCMR decision. As stated in the June 3, 2015 Order, the court issued this Order after

plaintiff “conceded in filings with the court ‘that the ABCMR . . . has answered the issues

raised by the pleadings and, therefore, the issues raised in Plaintiff’s case are resolved.’”

In fact, in plaintiff’s motion for judgment on the administrative record following the January

22, 2015 ABCMR decision, plaintiff states that “he is bound by the ruling of the ABCMR

and this litigation is ended.” Following plaintiff’s agreement that the litigation was

concluded and that the issues raised in his complaint were resolved, the court dismissed

the case on June 3, 2015 noting the terms of the January 22, 2015 ABCMR decision, but

without considering the merits of plaintiff’s claims. The court’s judgment for plaintiff in

accordance with the terms of the ABCMR decision does not have the judicial imprimatur

needed to affect the legal relationship between the parties. In sum, having failed to prove

that plaintiff is a prevailing party under the EAJA statute and existing case law precedent,

the court finds that plaintiff’s application for attorney’s fees and costs must be denied.

CONCLUSION

For the reasons stated above, plaintiff’s application to recover his attorney’s fees

and costs is DENIED.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge

25