DENVER v. MABUS

Filing 27

MEMORANDUM ORDER GRANTING 20 Plaintiff's Motion for Attorney Fees and Costs Under the Equal Access to Justice Act. Signed by Judge Arthur J. Schwab on 2/4/16. (eet)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MATTHEW DENVER,
Plaintiff,

15cv0890
ELECTRONICALLY FILED

v.
RAY MABUS in his official capacity as
SECRETARY OF THE NAVY,
Defendant.

MEMORANDUM ORDER Re: PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT
Plaintiff Matthew Denver filed this action under the Administrative Procedures Act
(“APA”), 5 U.S.C. §§ 701-706 seeking redress from a decision of the Board for Correction of
Naval Records (“BCNR”) denying his request for reconsideration of his discharge status. In his
Complaint, Plaintiff sought either (1) a determination from this Court that a material error
occurred in his case before the administration separation board; (2) a reversal of the BCNR’s
decision; (3) an Order upgrading his discharge from Other than Honorable; and/or (4) a remand
of this action to the BCNR. Doc. No. 1.
Defendant (the “Navy”) filed a Motion to Dismiss for Lack of Jurisdiction or,
alternatively, a Motion for Summary Judgment. Doc. No. 7. After briefing by the Parties which
revealed that several relevant documents were missing from the administrative record, this Court
denied the Navy’s Motion(s) and granted Plaintiff the relief he sought (in the alternative) to
remand the case to the BCNR - - ordering that his complete Official Military Personnel File,

including the documents which were missing from the administrative record, be considered.
Doc. No. 19.
Now before the Court is Plaintiff’s Motion for Attorney’s Fees and Costs under the Equal
Access to Justice Act. Doc. No. 20. Plaintiff seeks fees and costs in the amount of $8,300.64 for
time spent by one attorney and two students of the University of Pittsburgh School of Law
Veterans Practicum associated with litigating this action to remand to the BCNR and filing the
instant Motion. Id. The Navy contends that Plaintiff is not entitled to fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(a)(1), because he is not a “prevailing party”
for purposes of the Act. Doc. No. 25. The Navy does not otherwise challenge Plaintiff’s
Motion. Id.
I. Standard for Review
Under EAJA, a prevailing party in a civil suit against the United States may be awarded
attorney’s fees if the government’s position in the action was not substantially justified.
28 U.S.C. § 2412(d)(1)(A); Morgan v. Perry, 142 F.3d 670 (3d Cir. 1998). To find that a party
has prevailed under EAJA, the court’s ruling in the case must represent a “material alteration of
the legal relationship of the parties.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 792-93 (1989). If a court (1) sets aside an agency decision, (2) remands the matter to
the agency, and (3) does not retain jurisdiction of a matter pending agency review, but terminates
the judicial proceedings in favor of the plaintiff, then the plaintiff is a prevailing party for
purposes of EAJA. Johnson v. Gonzales, 416 F.3d 205, 209-10 (3d Cir. 2005). This is true
regardless whether the plaintiff ultimately prevails in the underlying agency action on remand.
Id.

The government bears the burden of showing that its position was substantially justified
and must show “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law
for the theory it propounded; and (3) a reasonable connection between the facts alleged and the
legal theory advanced.” Id.
II. Plaintiff is Entitled to Fees and Costs Under EAJA
a. Plaintiff is a Prevailing Party
The Navy argues that Plaintiff is not a prevailing party because it considers this Court’s
Order remanding the case to the BCNR and relinquishing jurisdiction purely “procedural” - stating that the Court did not “assign any error to the BCNR’s decision on the merits.”
Doc. No. 25 p. 3-4. The Navy also argues that “[b]ased upon the plain language of the Court’s
decision, the BCNR is free to review the additional documents and make the exact same decision
Plaintiff challenged in his Complaint.” Id.
This argument misses the mark. First, Plaintiff correctly points out that the United States
Court of Appeals for the Third Circuit has not adopted the “express or implied agency error
requirement for prevailing party status.” Doc. No. 26 p. 2. Second, although the BCNR may
review the Plaintiff’s case on remand and come to the same decision, this Court’s decision
remanding the case found that it was error for the agency to fail to review the Plaintiff’s
complete Official Military Personnel File as the BCNR is required to review all “relevant
factors.” Motor Vehicles Mfrs. Assn. of U.S. v. State Farm Mutual Auto Ins. Co., 463 U.S. 29,
42-43 (1983); see also doc. no. 19 p. 5 (“The documents identified by Plaintiff as incomplete
from the record are relevant to his claims . . . Without evidence that these documents were
considered by the BCNR, the Court cannot find that the decision comports with the deferential
standard of review.)

Third, the Court of Appeals squarely addressed this issue in Johnson - - where it found
that an alien who succeeded in his petition for review of a Board of Immigration Appeals
(“BIA”) decision before the Court of Appeals, based upon the BIA’s failure to consider
testimony from the alien during a second hearing, was a “prevailing party” under EAJA even
though the decision only entitled the alien to a remand to the BIA. 416 F.3d at 209-210.
And finally, the Navy’s reliance on several recent Court of Federal Claims decisions is
inapposite. Doc. No. 25, pp. 5-6. In both Shafer v. United States, 2015 WL 8268230 (Fed. Cl.
Ct. Dec. 8, 2015), and Hughett v. United States, 110 Fed. Cl. 680 (2013), the parties agreed to
remand to the respective agency for review. Here, although Plaintiff offered to jointly move for
remand prior to briefing of the Navy’s Motion(s), the Navy refused and chose to litigate the case.
Doc. No. 26, p.3 and Exh. A.
b. The Navy’s Position was not Substantially Justified
The Navy does not address whether its position at the agency level or in litigating its
Motion(s) herein was substantially justified. As such, the Navy has waived any argument on this
issue. Johnson, 416 F.3d at 211. As it is the government’s burden to prove that its position was
substantially justified to avoid an award of EAJA fees, id., the Court finds that the Navy’s
position was not substantially justified.1

1

Even if the Navy had submitted argument on this issue, it would be difficult for the Court to find that the agency’s
position was substantially justified when it did not dispute that the BCNR should have considered all relevant
materials and should have obtained the documents identified as missing from the record - - including the statement
of the Plaintiff that related to his discharge and a witness statement that corroborated evidence of bias. See Doc. No.
19, pp. 4-5.

III. Conclusion
Based upon the foregoing, Plaintiff’s Motion for Attorney’s Fees and Costs Under the
Equal Access to Justice Act is GRANTED. It is ORDERED that Defendant shall pay the sum of
$8,300.64 to the University of Pittsburgh for Plaintiff’s attorneys fees and costs pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412.

SO ORDERED this 4th day of February 2016.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge

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