Turner v. United States

In the United States Court of Federal Claims

No. 17-305

(Filed: April 19, 2023)

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

RYAN PIERRE TURNER, *

*

Plaintiff, *

* The Equal Access to Justice Act;

v. * Attorney Fees; Remand; Prevailing

* Party; Administrative Error.

THE UNITED STATES, *

*

Defendant. *

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Joseph Fellows, Mobile, AL, counsel for Plaintiff.

Mikki Cottet, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant. With whom was Lt. Col. Jahn C. Olson, U.S. Marine Corps, Office of the Judge

Advocate General, Department of the Navy, of counsel.

OPINION AND ORDER

DIETZ, Judge.

Before the Court is a motion for attorney fees pursuant to the Equal Access to Justice Act

(“EAJA”) filed by plaintiff, Ryan Pierre Turner. The government opposes Mr. Turner’s motion,

arguing that he is not entitled to an award of attorney fees because he has failed to establish

financial eligibility, he does not qualify as a prevailing party, and the government’s position in

defending against this litigation was substantially justified. The government also challenges Mr.

Turner’s requested attorney fees as unreasonable and unsupported. The Court finds that Mr.

Turner does not satisfy the prevailing party requirement under the EAJA, and, therefore, he is not

entitled to attorney fees.1 Therefore, Mr. Turner’s motion for attorney fees is DENIED.

I. BACKGROUND

Mr. Turner served in the United States Marine Corps from July 17, 2007, until he was

honorably discharged on July 30, 2014. Board for Correction of Naval Records (“BCNR”)

Decision, July 15, 2017 [ECF 12] at 1-2.2 During his service, Mr. Turner was subjected to racial

discrimination, and such discrimination led to adverse fitness reports and a loss of rank. Id.;

1

Because the Court finds the Mr. Turner is not a prevailing party and therefore is not entitled to an award of

attorney fees, the Court does not reach the government’s challenge to Mr. Turner’s financial eligibility, its argument

that its position was substantially justified, or its argument that the fees are unreasonable and unsupported.

2

All page numbers cited herein refer to the page number generated by the CM/ECF system.

Transfer Compl. [ECF 4] ¶ 12. Mr. Turner filed an equal opportunity complaint alleging racial

discrimination and petitioned the BCNR for corrective action. [ECF 12] at 1-2. Mr. Turner’s

equal opportunity complaint was subsequently substantiated after an investigation. Id. at 1.

Thereafter, the Performance Evaluation Review Board and the BCNR took corrective action to,

among other things, remove derogatory documents from his record, restore his promotion, and

award full separation pay. Id. at 2.

On May 16, 2016, Mr. Turner filed a pro se complaint against the United States Marine

Corps in the Southern District of Alabama (“District Court”), in which he alleged racial

discrimination, negligence, wantonness, libel, and wrongful termination. See Turner v. United

States, 2016 WL 7404865, at *1 (S.D. Ala. Dec. 21, 2016). Shortly thereafter, Mr. Turner

retained counsel. Pl.’s Reply, [ECF 80] at 2. On December 21, 2016, the District Court dismissed

each of Mr. Turner’s claims except for his wrongful termination claim. See Turner, 2016 WL

7404865, at *1-*2. The District Court transferred his wrongful termination claim to the United

States Court of Federal Claims because it possesses exclusive jurisdiction under the Tucker Act

over Military Pay Act claims over $10,000. Id. at *2-3; 28 U.S.C. § 1491(a)(1).

On April 4, 2017, Mr. Turner filed a transfer complaint seeking “just compensation from

the United States for his wrongful termination.” [ECF 4] ¶ 1. On May 1, 2017, this Court granted

a joint motion to remand Mr. Turner’s case to the BCNR for consideration of his requests for

additional relief related to his service in the United States Marine Corps. Remand Order [ECF 7].

On June 7, 2017, the BCNR denied Mr. Turner’s request for relief because “the Board found the

evidence submitted was insufficient to establish the existence of probable material error or

injustice” and “conclude[ed] prior BCNR action was sufficient to remedy alleged injustices.”

[ECF 12] at 2. However, the BCNR advised Mr. Turner that he is “entitled to have the Board

reconsider its decision upon the submission of new and material evidence” or “a new Board if

[he] request[s] different relief.” Id. at 3. Based upon a series of subsequent petitions filed by Mr.

Turner, the BCNR ultimately granted various forms of additional relief. See Sept. 5, 2017,

BCNR Decision, [ECF 14] at 3 (granting Mr. Turner: reinstatement in the United States Marine

Corps; active duty pay as if he were not discharged; removal from his record of any failure of

selection to staff sergeant; and consideration by an enlisted remedial selection board (“ERSB”)

for promotion); Dec. 5, 2017, BCNR Decision [ECF 18] at 2 (granting an extension of time for

Mr. Turner to reenlist);3 Apr. 19, 2021, BCNR Decision [ECF 56] at 4 (correcting Mr. Turner’s

primary military occupation specialty to Motor Transport Operations Chief to make Mr. Turner

eligible for consideration of promotion to Gunnery Sergeant). The BCNR granted the last of its

relief on April 19, 2021. See [ECF 56].

The government filed a status report on April 22, 2021, stating that, based on the latest

BCNR decision, “Mr. Turner has now received all relief that the Court could grant him.” Def.

Status Rep. [ECF 57] at 2. However, Mr. Turner advised in his RCFC 52.2(e) notice that the

government’s action on remand did not afford him a satisfactory basis for disposition of the case

because he “has not been made whole.” See [ECF 62] at 1. To address the parties’ respective

positions post remand, the Court ordered Mr. Turner to file a motion for leave to amend his

3

As of September 16, 2019, Mr. Turner has been reinstated in the United States Marine Corps and is stationed at

Camp Lejeune, North Carolina in the Wounded Warrior Battalion. See Sept. 19, 2019, Pl.’s Status Report [ECF 33].

2

complaint and for the government to file a motion to dismiss. Order, Sept. 1, 2021 [ECF 67]. On

October 12, 2021, Mr. Turner filed a motion to amend his complaint seeking to add tort claims

against the government, or in the alternative, requesting that the Court transfer his complaint

back to the District Court. Pl.’s Mot. to Amend Compl. [ECF 68] at 2. Additionally, Mr. Turner

claimed he was entitled to “treble damages” for his wrongful termination. See id. at 4-5. On

November 10, 2021, the government moved to dismiss Mr. Turner’s complaint for lack of

subject matter jurisdiction and requested that the Court deny Mr. Turner’s motion to amend his

complaint and motion to transfer his case. Def.’s Mot. to Dismiss [ECF 69] at 1. On June 15,

2022, the Court granted the government’s motion to dismiss, denied Mr. Turner’s motion to

amend his complaint and motion to transfer, and entered judgment accordingly. See Turner v.

United States, 160 Fed. Cl. 242, 247-48 (2022).

On August 14, 2022, Mr. Turner filed a motion under the EAJA seeking $147,537.50 in

attorney fees. Pl.’s Mot. for Att’y Fees [ECF 76]. The government filed its opposition to Mr.

Turner’s motion for attorney fees, see Def.’s Resp. [ECF 77], and Mr. Turner filed a reply, see

Pl.’s Reply [ECF 80]. Mr. Turner’s motion for attorney fees is fully briefed, and the Court has

determined that oral argument is not necessary.

II. LEGAL STANDARDS

The EAJA creates an exception to the general rule that plaintiffs may not recover attorney

fees from the United States. See 28 U.S.C. § 2412(d)(1)(A) (2018); Ruckelshaus v. Sierra Club,

463 U.S. 680, 685 (1983); see also Davis v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir. 2007)

(“The 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 fees and costs.”); Sullivan v. Finkelstein, 496 U.S.

617, 630 (1990) (“The purpose of the EAJA [is] to counterbalance the financial disincentives to

vindicating rights against the Government through litigation[.]”). Eligibility under the EAJA

requires that: (1) the requesting party be a “prevailing party;” (2) the government’s position was

not substantially justified; (3) no “special circumstances make [the] award unjust;” (4) the fee

application be submitted within thirty-days of final judgment in the action; and (5) the prevailing

party have a net worth as an individual of less than $2,000,000 at the time the action was filed.

28 U.S.C. § 2412(d)(1)(A), (d)(1)(B), (d)(2)(B); Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158

(1990). The plaintiff bears the burden of satisfying each of the eligibility requirements, then the

burden shifts to the government to demonstrate that its position was substantially justified.

RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1288 (Fed. Cir. 1999).

III. DISCUSSION

Mr. Turner filed a timely motion under the EAJA in which he seeks $147,537.50 in

attorney fees.4 The government opposes Mr. Turner’s motion on the grounds that, among other

things, he has not established “prevailing party” status. Upon review of Mr. Turner’s motion, the

Court agrees that Mr. Turner has not satisfied the “prevailing party” requirement under the EAJA

and, thus, he is not entitled to recover attorney fees.

4

The government concedes that Mr. Turner’s motion is timely. See [ECF 77] at 12.

3

To recover attorney fees under the EAJA, Mr. Turner must be a prevailing party in this

litigation. See 28 U.S.C. § 2412(d)(1)(A). A “prevailing party” is one that has been awarded “at

least some relief on the merits of his claim” by the court. Buckhannon Bd. & Care Home v. W.

Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001); see also Davis, 475 F.3d at 1363

(stating that the Federal Circuit “applie[s] the definition of ‘prevailing party’ in Buckhannon to

EAJA cases.”). “In other words, to prevail, a party must have received a judicial imprimatur

tantamount to a judgment in favor of that party on the merits of the original claim.” Akers v.

Nicholson, 409 F.3d 1356, 1359 (Fed. Cir. 2005) (citing Buckhannon, 532 U.S. at 605).5

However, a party is not a prevailing party—even if they obtain the relief they sought—if the

relief obtained results from a voluntary change in the defendant’s conduct. See Buckhannon, 532

at 605 (“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.”)

A remand to an agency generally does not confer prevailing party status because

“remands do not necessarily provide any relief on the merits[.]” Davis, 475 F.3d. at 1363. A

remand to an agency can only confer prevailing party status “if the remand is predicated—either

explicitly or implicitly—on administrative error.” Robinson v. O’Rourke, 891 F.3d 976, 980-81

(Fed. Cir. 2018); see also Ward v. U.S. Postal Serv., 672 F.3d 1294, 1299 (Fed. Cir. 2012)

(stating that “remands not rooted in agency error do not result in prevailing party status”). To

determine if a remand was based on agency error, the Court “looks to both the remand order

itself and the context of the full record.” Crawford v. United States, 157 Fed. Cl. 741, 744 (2022)

(quotation marks omitted) (quoting Martinez v. United States, 94 Fed. Cl. 176, 182 (2010)); see

also Gurley v. Peake, M.D., 528 F.3d 1322, 1328 (Fed. Cir. 2008) (Whether or not a remand was

based on an agency error “is not limited to the four corners of the remand order.”). The burden is

on the EAJA applicant to show “that the remand had to have been predicated on administrative

error even though the remand order does not say so.” Davis, 475 F.3d at 1366; see also

Robinson, 891 F.3d at 981.

After Mr. Turner filed his transfer complaint, the parties filed a joint motion, seeking to

stay further proceedings before the Court and to remand his case to the BCNR. Joint Mot. to

Remand [ECF 6]. The Court granted the joint motion in an order that stated, in its entirely:

On April 28, 2017, the parties filed a joint motion for a stay of

proceedings and a remand to the [BCNR]. For good cause shown,

the motion is GRANTED[.] [T]his case is STAYED and remanded

to the BCNR for further consideration of Mr. Turner’s claims related

to his service in the Marine Corps.

The parties shall file with this Court a joint status report every 60

days, beginning on July 3, 2017, and thereafter on the first business

day of every other month, indicating their progress towards

resolving Mr. Turner’s claims.

5

Judicial imprimatur is a “[a] general grant of approval[.]” See Imprimatur, Black’s Law Dictionary (11th ed. 2019)

4

[ECF 7] at 1. Pertinent to Mr. Turner’s motion for attorney fees, the Court’s remand order did

not identify or infer an agency error or otherwise address the merits of Mr. Turner’s claims. See

[ECF 7]. Furthermore, the joint motion requesting a remand to the BCNR explicitly stated that

“[w]hile the United States is willing to seek further information in the interest of justice, this

motion is not predicated upon an admission of error by the United States, the Navy, or the

BCNR.” [ECF 6] at 2 n.2. Because there was neither a judicial acknowledgement of

administrative error nor a concession of error by the agency, the general rule is that the Court’s

remand order was procedural in nature and does not confer prevailing party status. See Davis,

475 F.3d at 1364; Hughett v. United States, 110 Fed. Cl. 680, 687 (2013). To overcome this

general rule, Mr. Turner must demonstrate that the Court’s remand order was premised on an

administrative error. See Robinson, 891 F.3d at 981.

Mr. Turner argues that he is a prevailing party because he received some relief on remand

and that the relief would not have been possible without filing this case. See [ECF 80] at 5-7. He

cites to a quote from the government’s response to his RCFC 52.2 notice that states, “Mr. Turner

has now received all relief that the Court could grant him.” Id. at 5 (quoting [ECF 57] at 2). He

asserts that “[w]rongful termination is the basis of all relief [that he] has been granted up to and

including April 19, 2021.” Id. He further asserts that “[he] has unquestionably changed his legal

relationship with the [government]” and “[b]ut for this litigation, [he] would have received

nothing.” Id. at 5, 7.

Despite Mr. Turner’s arguments, the Court finds that Mr. Turner has not established

prevailing party status under the EAJA because the remand of Mr. Turner’s case to the BCNR

was procedural and not premised on agency error. The Court’s remand order cited “[f]or good

cause shown” as the only explanation for the remand. See [ECF 7] at 1. In other words, the

remand was premised on the reasons stated in the joint motion requesting that the Court remand

the case to the BCNR. The joint motion stated that a remand to the BCNR “may conserve the

resources of the parties and this Court” and would be “helpful” because it would allow the

BCNR to “consider whether Mr. Turner should be provided additional relief based on the

BCNR’s prior decision substantiating discrimination against Mr. Turner.” [ECF 6] at 1-2.

Additionally, it stated that the BCNR will also “consider additional evidence produced by Mr.

Turner’s counsel.” Id. at 2. Thus, the remand was predicated on judicial economy and the

BCNR’s desire to allow Mr. Turner a new opportunity to request additional relief. The BCNR

sought to consider—in the first instance—whether Mr. Turner was entitled to the additional

relief sought in his transfer complaint, in addition to the relief that he previously received from

the BCNR. There is no indication in the joint motion for remand or the Court’s remand order that

the BCNR had erred by not previously granting the new relief sought by Mr. Turner in this case.

Therefore, the remand does not confer prevailing party status. See Robinson, 891 F.3d at 983

(holding that administrative error cannot be inferred from a remand order when the Court

remanded to allow a EAJA applicant to present new legal arguments); Davis, 475 F.3d at 1364

(finding that a remand to consider the EAJA applicants claims based on new evidence was not

predicated on agency error); Silva v. United States, 138 Fed. Cl. 325, 332 (2018) (finding that a

remand was not premised on administrative error when the remand order instructions were a

“duplicate of the instructions that the parties already laid out in their joint motion to remand.”).

5

Even the transfer complaint—the only substantive filing at the time of the parties’ joint

motion—does not indicate that the remand order was premised on administrative error. While the

transfer complaint states Mr. Turner’s claim that he was discriminated against, and that the

discrimination had been substantiated by the government, nothing in the transfer complaint hints

that the relief Mr. Turner requests in his transfer complaint was previously sought from the

BCNR and incorrectly denied. See [ECF 4]. Further, nothing in the transfer complaint suggests

that the BCNR erred in its previous attempts to grant relief for Mr. Turner’s substantiated racial

discrimination claims.6

Mr. Turner’s argument that he is a prevailing party because he received some relief on

remand does not satisfy his burden of showing that the Court’s remand was premised on

administrative error. Mr. Turner must show that the relief he obtained from the BCNR was

achieved through the “necessary judicial imprimatur on the change.” Buckhannon, 532 U.S. at

605; see also Akers, 409 F.3d at 1359. Obtaining relief through a defendant’s voluntary change

in conduct does not have the necessary judicial imprimatur to convey prevailing party status.

Buckhannon, 532 U.S at 607 (“We cannot agree that the term ‘prevailing party’ authorizes

federal courts to award 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.”). The remand must still be premised on

administrative error. See Robinson, 891 F.3d at 980-81. Aside from the relief he obtained at the

BCNR, Mr. Turner has not identified anything in the Court’s remand order, the parties’ joint

motion to remand, or in the record before the Court at the time of the remand that indicates that

the remand was premised on administrative error. By failing to do so, Mr. Turner has failed to

show that the remand of his case to the BCNR was tantamount to a judgment in his favor on the

merits of his claim, instead of a voluntary change of conduct by the BCNR. See Robinson, 891

F.3d at 980-81 (stating that to confer prevailing party status, a remand must be “predicated—

either explicitly or implicitly—on administrative error”); Ward, 672 F.3d at 1299 (“[R]emands

not rooted in agency error do not result in prevailing party status.”); Crawford, 157 Fed. Cl. at

745 (rejecting arguments for prevailing party status that “rel[y] in large part on matters that were

not before the court at the time it remanded the case and therefore could not have served as the

predicate for the remand decision.”).

6

The procedural nature of the remand to the BCNR is further supported by the BCNR’s first decision on remand.

For this decision, the BCNR considered the same relief that was requested in Mr. Turner’s transfer complaint.

Compare [ECF 4] at 3 with [ECF 12] at 2. The BCNR initially found “no basis or authority to grant a cash award,

promotion, or retirement, and conclude[d] that prior BCNR action was sufficient remedy to alleged injustices, and

[that] further relief [was] not warranted or appropriate.” [ECF 12] at 3. Regarding Mr. Turner’s wrongful

termination claim, the BCNR held that there was no basis or authority to award to any monetary relief, promote Mr.

Turner, or grant Mr. Turner a retirement of twenty years. Id. at 2. However, the BCNR did note:

It is regretted that the circumstances of your case are such that favorable action

cannot be taken at this time. You are entitled to have the Board reconsider its

decision upon the submission of new and material evidence. New evidence is

evidence not previously considered by the Board. You are also entitled to a new

Board if you request different relief.

Id. at 3. Mr. Turner did not receive any additional relief from the BCNR until he modified the relief he sought in

later petitions. See [ECFs 14, 18, 56].

6

IV. CONCLUSION

As explained above, Mr. Turner has not met his burden to establish prevailing party

status as required to recover attorney fees under the EAJA. Accordingly, Mr. Turner’s motion for

attorney fees [ECF 76] is DENIED.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

7